Employment Law Speed Read – 05/03/18

Kocur v Royal Mail

In Kocur v Royal Mail, the Employment Appeal Tribunal held that agency workers, who had completed 12 weeks of work and were therefore entitled to the same basic terms as comparable employees, could not be compensated for less favourable holiday entitlement and rest breaks, by receiving a higher hourly rate of pay.

Background

Mr Kocur was an agency worker who worked at Royal Mail’s postal centre in Leeds. By June 2015, he had 12 weeks service at Royal Mail, which triggered his rights under the Agency Worker Regulations 2010 (AWR).

Under Regulation 5 of the AWR, agency workers with 12 weeks service are entitled to the same basic working conditions as other employees.

Mr Kocur raised grievances with Royal Mail, highlighting that he was being paid for 30 minutes of his 1 hour rest break when comparable employees were being paid for the whole hour and his holiday entitlement was 28 days’ compared to the employees’ 30.5 days.

Further, Mr Kocur was not provided with a swipe card for entering the mail centre and was not able to use the on-site fitness centre which Royal Mail’s employees could.

However, unlike employees who earned £9.60 an hour, Mr Kocur earned £10.50 an hour.

Employment Tribunal

Mr Kocur subsequently brought claims under the AWR to the Employment Tribunal.

The Employment Tribunal found that:

• Royal Mail had infringed his rights under the AWR in respect of the swipe card and membership of the fitness centre.
• His claim for payment for rest breaks and entitlement to annual leave were dismissed because his higher pay compensated for the fact that he received less favourable terms in respect of rest breaks and holiday.

The Employment Appeal Tribunal

On appeal, the Employment Appeal Tribunal held that agency workers were entitled to the same basic terms as comparable employees on a ‘term-by-term’ basis. The Employment Tribunal had erred in comparing the overall package that Mr Kocur had received. Royal Mail could not use the extra pay to off-set the lower holiday.

Comment

The case is a reminder to employers that they must provide agency workers, who have 12 weeks service, with the same basic terms as their own employees and cannot rely on the fact that an agency workers’ overall package is broadly similar.

Employers can potentially consider other options such as ‘rolled-up’ holiday pay or payment of a lump sum on termination of the holiday assignment to offset a benefit but the payment mechanism would need to be set out transparently in advance.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.