Mr Kocur and Ms Roberts were both flexible workers for a company providing Royal Mail with agency workers. They brought several claims under the Agency Workers’ Regulation for breaches of their rights to equivalent terms.
The case was recently dealt with by the Court of Appeal, covering whether agency workers have a right to be offered equivalent hours to comparable permanent staff.
Kocur and Another V Angard Staffing Solutions Limited
Mr Kocur and Ms Roberts were both flexible workers who were provided by Angard Staffing Solutions Limited to Royal Mail Group Limited as agency workers.
Regulation 5 of the Agency Workers Regulations 2010 provides for an agency worker to receive the same basic working conditions and employment conditions as if they had been recruited via other methods. Under the Regulations this includes terms relating to the “duration of working time”. This right kicks in after 12 weeks’ engagement.
The claimants made ten claims that their rights provided by regulation 5 had been infringed. These included the late payment of Christmas bonuses in 2017, the exclusion from worktime learning sessions, exclusion from the overtime issuing system, the issuing of longer shifts, the deduction of breaks, the use of rolled up holiday pay, the averaging of payslips, the scheduling of shorter shifts, the allocation of fewer night shifts and the difference of hours worked between agency workers and permanent employees.
They also made a claim under regulation 13, namely that their right to apply for internal vacancies had been infringed. Regulation 13 allows an agency worker ‘the right to be informed of any relevant vacancies and the equal chance as a comparable worker to find permanent employment with the hirer.’
Four claims made under Regulation 5 were well founded. The claimants received financial awards to cover late bonuses and the deduction of breaks. The other two successful claims were the issuing of longer shifts and the use of rolled up holiday pay. They also succeeded in their claim under Regulation 13.
The part of the claim which did not succeed and which was appealed concerned the allocation of hours to the workers. Mr Kocur argued, relying on the “terms relating to the duration of working time” wording of the Regulations, that he should have been allocated the same number of hours as permanent staff after 12 weeks (39 hours). The Employment Appeal Tribunal gave this short shrift, finding that such an interpretation would remove the flexibility created by engaging agency workers and would also create a situation where agency workers could cherry-pick a comparable employee whose working hours they happened to want to do.
The Court of Appeal agreed with the EAT and dismissed the appeal. It also went a step further in finding that the wording “duration of working time” means “the duration of any period during which the individual is working”. It can only ever relate to the length of time someone is working continuously, such as a working day or shift. It cannot relate to the entire working week or month or the allocation of shifts. The Court said that nobody would describe someone working full-time as working for a “period” of 39 hours in a week.
The decision in this case is perhaps unsurprising, mainly for the reasons given by the EAT. An interpretation of the Regulations which required agency workers to be offered the same number of hours as any permanent employee they could choose would be perverse. It would also defeat the object of agency workers, usually being to plug gaps which may temporarily exist or to engage as demand rises and falls.
If you have any queries in relation to agency workers, flexible working or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.