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Welcome clarification for employment businesses and hirers on the practical application of the Agency Workers Regulations 2010

Posted on 8 February 2021

The decision of the Employment Appeal Tribunal in Angard Staffing Solutions Ltd and anor v Kocur and anor [2020] UKEAT/0105/19/JOJ has provided helpful clarification on various aspects of agency workers' rights under the Agency Workers Regulations 2010, particularly in relation to Regulations 5 and 13.

What are Regulation 5 and Regulation 13 of the Agency Workers Regulations 2010?

Regulation 5 of the Agency Workers Regulations 2010 (the "Regulations") entitles agency workers to the same "basic working and employment conditions" as the hirer's own staff for doing the same or similar job.

As mentioned in our previous article, agency workers only qualify for these rights once they have performed the same role with the same hirer for 12 continuous calendar weeks. At that point they become entitled to the same terms and conditions they would have ordinarily been entitled to if they had been recruited directly by the hirer, whether as an employee or worker.

Regulation 13 of the Regulations provides that an agency worker has the right to be informed of any relevant vacant posts with the hirer in order to give them the same opportunity as the hirer's own staff to find permanent employment with the hirer. Unlike Regulation 5, this is a "day 1 right", which means that the entitlement extends to agency workers as soon as they start a temporary assignment with the hirer.

Angard Staffing Solutions Ltd ("Angard") and anor v Kocur and anor

Angard was an employment agency which was wholly owned by Royal Mail and supplied workers to Royal Mail as required. The claimants were agency workers who were given regular work at Royal Mail's Leeds Mail Centre.

The claimants complained of breaches of the Regulations by both Angard, as the employment agency, and Royal Mail, as the hirer. This included breaches of Regulation 5 and Regulation 13. The claimants were successful in five of their claims in the Employment Tribunal, against which Angard and Royal Mail appealed. The claimants also appealed on certain tribunal findings that were adverse to them.

In considering the alleged breach of Regulation 13, the Employment Appeal Tribunal (the "EAT") held that the right to be informed of vacancies by the hirer does not extend to a right to apply for and be considered for internal vacancies on the same terms as the hirer's own staff. While the EAT acknowledged that Regulation 13 refers to agency workers being given the same "opportunity" as directly-recruited employees to find permanent employment, it concluded that this obligation had been satisfied because agency workers were given the same information about permanent vacancies as direct employees.

The EAT also held that the fact that the claimants' shifts were 12 minutes longer than those of directly-recruited employees did not constitute a breach of Regulation 5. The EAT referenced the fact that agency workers were paid for the additional time that they worked, and determined that agency workers were not entitled to work the same number of contractual hours as the hirer's own staff.  Such a requirement would be unworkable and undermine the purpose of agency workers, which is the flexibility they provide to deal with fluctuations in demand for workers. The reference to equal treatment in relation to the "duration of working time" has a more limited meaning, which prevents a hirer setting a maximum period of working time for its own staff that is different to the limit set for agency workers.

The EAT further concluded that the fact the mail centre's direct employees were required to attend training sessions once a week while agency workers continued to work did not constitute a breach of Regulation 5. It determined that there was nothing in the wording of Regulation 5 to suggest that agency workers must be provided with the same working content as direct employees. The EAT flagged that such an interpretation would undermine the flexibility at the centre of the relationship between hirers and agency workers. For example, it would prevent hirers from using agency workers to provide cover while permanent employees were away undertaking different duties.

The EAT also determined that the fact direct employees were given first refusal in relation to overtime before agency workers was not a breach of Regulation 5 as the regulation does not require hirers to offer overtime to agency workers at all, or on the same terms as it would have offered to them if they were direct employees. In brief, the right to the same treatment in relation to basic working and employment conditions dealing with "overtime" does not include the right to the same treatment in relation to opportunities for overtime.

However, the EAT did conclude that the implementation of pay rises for agency workers at a later date than the hirer's own staff could constitute a breach of Regulation 5, even where both groups of workers were eventually paid at the same rate for the relevant period. The claimants' appeal on this issue was allowed and the matter was sent for reconsideration by a different Employment Tribunal.

While cases in this area tend to be fact-specific, the decision of the EAT in this case provides a useful illustration of how the rights granted to agency workers under the Regulations operate in practice. It also emphasises the flexibility at the centre of the relationship between hirers and agency workers, which the EAT ultimately sought to preserve which will be welcome news for employment businesses and end user clients.

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