The Employment Appeal Tribunal (EAT) has considered whether agency workers should be granted the same leave and rest break entitlements as permanent employees who were paid a lower hourly rate of pay.

Kocur v Angard Staffing Solutions Ltd, EAT

Facts

Mr Kocur was supplied by the agency to work for Royal Mail. He received an enhanced hourly rate of pay compared with Royal Mail’s permanent employees, but was only entitled to a 30 minute paid rest break each day (rather than 60 minutes), and 28 days’ holiday (rather than 30.5 days).

As he had worked at Royal Mail for a period of more than 12 weeks, Mr Kocur claimed that he should be entitled to the same weekly working hours, annual leave and paid rest breaks as Royal Mail employees, under regulation 5 of the Agency Workers Regulations 2010 (AWR).

His claim was dismissed by the employment tribunal on the grounds that his reduced rest break and annual leave entitlements were compensated for by his enhanced hourly rate of pay. In doing so, the tribunal adopted the approach that a comparison of terms under the AWR could be assessed as an overall package, rather than on a term-by-term basis.

EAT decision

The EAT upheld Mr Kocur’s claim in relation to annual leave and rest breaks. It held that agency workers such as Mr Kocur should be entitled to at least the same annual leave and rest break entitlement as permanent employees of Royal Mail, and a reduced entitlement could not be compensated for by a higher rate of pay.

Consequences

This is the first appellate decision to consider the comparison of basic working and employment conditions of agency and permanent employees under the AWR. The EAT’s decision in this case confirms (subject to any appeal) that a term-by-term assessment is the appropriate approach to take. The fact that agency workers are often paid a higher hourly rate is not regarded as sufficient to compensate them for inferior rest breaks and annual leave entitlements. Both the tribunal and the EAT, in this case, noted that a higher rate of pay is often to compensate for job insecurity.

The EAT did acknowledge that an agency worker could receive their entitlements to rest breaks and annual leave by a different payment mechanism to that of permanent employees, provided it was sufficiently transparent.