In Kocur v Angard Staffing & Royal Mail, the EAT upheld an agency worker's claim for the same annual leave and rest break entitlement as a direct recruit, even though he was paid more, in total, for each shift than a direct recruit. The Agency Worker Regulations require a term by term comparison, not a package-based approach. However, the EAT upheld the Tribunal's view that there is no requirement to provide agency workers with the same amount of working hours as direct recruits.
Under the Agency Worker Regulations 2010 (AWR) agency workers are entitled to the same basic employment terms as the hirer's direct recruits after a 12-week qualifying period. The basic terms are those relating to pay, duration of working time, night work, rest periods, rest breaks and annual leave.
The claimant in this case received a higher hourly rate of pay than a direct recruit, but 2.5 days less holiday. He was only paid for 30 minutes of his one-hour rest break, whereas direct recruits were paid for the full hour. Overall, he received £1.95 more per shift than a direct recruit.
he EAT upheld the claimant's claim that he had not been provided with the same terms as direct recruits in respect of holidays and rest breaks. The fact that the claimant was paid more overall for the shift did not compensate for the less favourable terms in respect of holidays and rest breaks.
The EAT considered that compliance could have been achieved by rolling a payment for the extra holidays and the rest break into the claimant's hourly rate, if it had been done transparently. However, on the facts here, there was no such transparency. In any case, the claimant clearly received fewer holidays and it was no answer to say that he could take time off between assignments to compensate.
However, the EAT rejected the claimant's argument that he was entitled to the same amount of weekly hours as direct recruits. An agency worker's right to the same "duration of working time" as direct recruits means that, for example, an agency worker should not have to work longer shifts than direct recruits. It does not mean that an agency worker must be provided with an equivalent working week.
The EAT also observed that the wording of the AWR providing for the "same" terms for agency workers and direct recruits could, taken literally, be interpreted as meaning that agency workers could never receive more generous terms in any respect. However, the EAT concluded that this cannot have been parliament's intention and that "the same" in this context must mean "at least".
This is the first reported EAT decision on the right to equivalent terms provided by the AWR. The EAT's conclusion on the meaning of "the same" terms and their decision that the AWR require a term-by-term comparison are both unsurprising.
Here, the hirer seems to have provided the correct amount of pay overall, but the agency failed to allocate it correctly. Note that the agency (not the hirer) will generally be held responsible for any breach of the agency worker's 12-week rights as long as:
- the hirer provides the correct information about the terms of its direct recruits, and
- there is no other reason to hold the hirer responsible, such as collusion with the agency or obvious underpayment.
However, hirers should ideally protect themselves with indemnities in their terms of business with agencies, especially as hirers may have little means of knowing if agencies are correctly earmarking the payments they make to agency workers.
In the EAT's view, compliance could have been achieved by explicitly apportioning some of the hourly rate to the additional holiday and rest break. This is pragmatic, since it may be administratively easier. The government guidance already suggests this option for extra contractual holidays and it may also be a sensible approach for daily rest breaks, as long as the agency worker receives the rest break. However, rolled-up holiday pay for statutory holiday is currently unlawful.
In the Tribunal, the claimant also brought a successful claim against the hirer (Royal Mail) for failure to allow him equal access to its onsite fitness centre and failure to provide him with a swipe card for accessing its premises. Under the AWR, hirers are solely liable for breach of an agency worker' right to equal access to collective facilities and amenities. The ruling in relation to swipe cards is interesting as many companies do not provide swipe cards to agency workers and it is not one of the examples covered in the government guidance. However, Royal Mail appear not to have appealed against this ruling and the Tribunal's view on this point will therefore not be binding on other Tribunals.