A recent case highlights why employers who use agency workers should check the terms of their contracts of employment.
In Kocur v Angard Staffing Solutions Limited and Royal Mail Group Limited, the Employment Appeal Tribunal (EAT) considered the extent to which agency workers’ employment conditions must match the conditions of employees who are recruited directly.
Facts
Mr Kocur was employed by Angard Staffing Solutions, an agency supplying temporary workers and, through the agency, he worked for the Royal Mail. Under his contract of employment, he was entitled to 28 days’ annual leave, however, employees recruited directly by the Royal Mail were entitled to 30.5 days’ annual leave. Mr Kocur was given one hour rest breaks, but was only paid for 30 minutes while Royal Mail employees were entitled to one hour paid rest breaks.
Mr Kocur was also not given a swipe card for accessing the premises and was not entitled to membership of the onsite fitness centre. As an agency worker, his pay was slightly higher than that of employees recruited directly - he earned £10.50 per hour in comparison to a direct recruit’s £9.60 per hour.
Mr Kocur brought a claim to the Employment Tribunal that the agency and the Royal Mail were in breach of the Agency Workers Regulations 2010 (AWR). The Tribunal held that Mr Kocur’s rights in relation to the swipe card and the fitness centre had been infringed but others had not. The higher wages made up for agency workers having fewer paid holidays and shorter paid breaks. Mr Kocur appealed to the EAT.
Law
Under the AWR agency workers are entitled to “the same basic working and employment conditions” as direct recruits. In order to trigger entitlement to this protection, an agency worker must have worked in the same role for the same hirer for at least 12 weeks.
Decision
The EAT held that Mr Kocur’s AWR rights had been breached. The agency and the Royal Mail argued that although directly recruited employees were entitled to 2.5 days’ more leave, agency workers could take these days as unpaid leave and that in terms of pay, the enhanced hourly rate would cover this.
The EAT held that this approach would not be sufficient. A voluntary allocation of leave does not amount to an entitlement and agency workers taking 2.5 days between assignments might render themselves less likely to obtain further work. It would undermine the purposes of the AWR if agency workers were deprived of annual leave to which directly recruited employees were entitled.
Additionally, there was nothing in Mr Kocur’s payslip to indicate any proportion of the enhanced hourly rate was to amount to payment for 2.5 days’ annual leave.
When comparing agency workers’ contracts with employees’ contracts, terms need to be looked at on a term by term basis rather than a package-based approach.
The EAT held that rest breaks need to be considered in isolation and not as part of a shift. The employees were paid for an hour, while the agency workers were only paid for half an hour so Regulation 5 had been breached regardless of the fact that over the course of the whole shift, agency workers were paid more. Payment for breaks can be rolled-up into hourly payment but any rolling up should be transparent and detailed clearly on their payslips which in this case it was not.
What can employers do to avoid breaching AWR?
When using agency workers, employers should liaise with the agency to check that their terms are at least as good as the terms of employees who are recruited directly. This is especially important for agency workers who have been working in the same role for at least 12 weeks.
The terms of employment should be compared on an individual basis rather than a package-based approach, and a less favourable term cannot be balanced by another more favourable one relating to something else.
If you are an employer with any specific queries about contracts of employment for agency workers, please contact our Employment team for further advice.
