The Employment Appeal Tribunal (EAT) recently had to consider the rights of agency workers under regulation 5(1) of the Agency Workers Regulations 2010 (AWR), which requires agency workers to be given the same working and employment conditions as permanent workers once they have been on an assignment with the hiring company for 12 weeks. The EAT clarified that parity of employment terms must be looked at on a term-by-term basis, not as an overall package.

Facts of the case 

In Kocur v Angard Staffing Solutions Ltd, Mr Kocur had been an agency worker at Royal Mail for more than 12 weeks, and was unhappy that certain terms of his employment differed from those of permanent employees.

Mr Kocur was entitled to 28 days’ annual leave and one hour’s break per shift, with only 30 minutes of the break being paid. On the other hand, Royal Mail’s directly employed staff were entitled to 30.5 days’ holiday per year and a one-hour, fully paid break per shift.

The employment tribunal (ET) ruled that these arrangements complied with the AWR because Mr Kocur was paid a higher hourly rate than Royal Mail’s permanent employees. In the ET’s view, this higher wage offset the shortfalls in entitlements.

EAT decision

The EAT disagreed that there had been compliance with AWR, and ruled that a higher hourly rate does not compensate for shortfalls in other terms. In the EAT’s view, each employment term must be assessed individually, rather than looking at agency workers’ terms as an overall package.

Mr Kocur’s lower, 28 days’ annual leave was therefore in breach of AWR, as was the difference in pay for rest breaks.

However, the EAT agreed with the ET’s ruling that there was no need to give agency workers exactly the same number of working hours as permanent employees. This requirement was considered unworkable, as it would make it difficult to maintain flexibility for the agency, agency worker and hiring company.

Comment

This case makes it clear that more favourable arrangements in certain employment terms for agency workers cannot compensate for other, less favourable terms. It is not uncommon to find agency workers are paid more per hour but enjoy less favourable benefits so this case could have a significant impact in practice. Employers are likely to be looking to reduce such enhanced hourly rates in exchange for other benefits which they may now need to provide.

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