Clarity on agency worker rules

The Agency Worker Regulations 2010 (‘the Regulations’) apply to agency workers who are assigned to undertake temporary work for hirers through temporary work agencies.

The Regulations provide agency workers with various rights, including:

• the right to the same basic working and employment conditions as they would be entitled to as an employee of the hirer; and
• the right to be informed of any relevant vacant posts with the hirer.

These rights were considered and refined by the Employment Appeal Tribunal (EAT) in a case called Angard Staffing Solutions Limited v Kacor.

Facts

Angard Staffing Solutions Limited (ASS) is an employment agency which is a wholly owned subsidiary of Royal Mail. ASS provided agency workers to Royal Mail, reacting to Royal Mail’s fluctuating demand for postal workers.

Multiple agency workers employed by ASS, but who were supplied to work in one of Royal Mail’s centres, complained that both ASS and Royal Mail had breached the Regulations, including:

• breach of the agency workers’ entitlement to the same basic working and employment conditions to which they would be entitled for doing the same job as if had they been recruited by Royal Mail; and
• breach of the Agency Workers’ entitlement to be informed by Royal Mail of any relevant vacant posts.

The agency workers succeeded in two of five of their claims, against which ASS and Royal Mail appealed. The workers also appealed against some of the Tribunal’s findings towards them.

Employment Appeal Tribunal

Most notably, the EAT held that:

• the right to be informed of vacancies by the hirer does not mean that the agency workers had a right to be entitled to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees. The right was limited to the Agency Workers being notified of the vacancies on the same basis of directly-recruited employees.
• Although the agency workers’ shifts were 12 minutes longer than they would have been if they had been recruited directly, they were paid for the extra time that they worked. It was held that the Regulations do not entitle agency workers to work the same number of contractual hours as a directly recruited worker.
• While there is a reference in the Regulations to equal treatment towards the duration of working times, this has a more limited meaning; if the hirer sets a maximum period when a comparable directly-hired employee could be required to work, the maximum could not be different for agency workers. This did not apply in the case.
• The agency workers had complained that Royal Mail had breached the Regulations because direct employees were provided with training, during which time the Agency Workers were expected to continue with their normal duties. The EAT held that the Tribunal was correct in concluding that this was not a breach of the Regulations. This was because there is no express wording in the Regulations to suggest that there is a requirement for equality of treatment in relation to the content of working time.
• There was nothing in the Regulations to stop direct employees being given first refusal in relation to overtime opportunities, in preference to the Agency Workers. The EAT held that the entitlement to equality of treatment in relation to ‘overtime’ does not extend to a right of equal treatment in respect of opportunities for overtime.
• There was not a breach of the Regulations by agency workers’ payslips containing reduced information compared direct employees’ payslips. The entitlement to equal treatment in relation to ‘pay’ did not extend to a right to the same information on payslips.
• While the breaks of the Agency Workers and direct employees were of the same duration, and both were paid at the same rate for such breaks, the breaks were scheduled in advance for direct employees, but not for agency workers. The EAT held that the Tribunal was correct in finding that this was not a breach of the Regulations. The timing (as opposed to the duration) of the breaks did not concern the ‘duration of working time’ and therefore did not fall within the scope of the relevant regulation.
• There was a question over whether there had been a breach of the Regulations as a pay rise was implemented for direct-hires six months before it was implemented for the Agency Workers. The EAT said that this could potentially be a breach of the Regulations but did not make any explicit findings. The point will be re-considered by a new tribunal.

Comment

The EAT’s guidance in this case provides eagerly awaited clarity as to the application of the Regulations. End-users of agency workers’ services will breathe a sigh of relief at the EAT’s strict and very narrow interpretation of the Regulations.

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Contributor: Amanda Applegate

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.