Is an agency worker entitled to the same number of contractual hours as a permanent employee?

Background

Mr Kocur was an agency worker supplied by Angard Staffing Solutions (Angard) to the hirer, Royal Mail.

The Agency Workers Regulations 2010 (Regulations) set out the rights of agency workers in relation to basic working and employment conditions. Agency workers are entitled to the same basic working and employment conditions as they would have been entitled to for doing the same job, had they been recruited by the hirer directly. The entitlement applies once the agency worker has worked in the same role, with the same hirer, for 12 continuous calendar weeks.

Mr Kocur brought a claim alleging various breaches of the Regulations by Angard and Royal Mail.

Employment Tribunal

The Employment Tribunal upheld Mr Kocur’s claim in part, but dismissed his claims that he did not receive the same rest breaks as Royal Mail employees and that he was entitled to be allocated equivalent hours of work as Royal Mail employees.

On the entitlement to paid rest breaks, the Tribunal held that Mr Kocur was compensated for this by an enhanced hourly rate of pay. In relation to the failure to allocate him the equivalent hours of Royal Mail employees, the Tribunal held that equal treatment for “duration of working hours” did not mean an entitlement to equivalent hours. The Tribunal noted that the demand for agency workers waxes and wanes and that such a far reaching intention of the Regulations would fundamentally change the relationship between hirers and temporary work agencies. It would be unworkable if hire workers did not have the flexibility to hire agency workers as and when demand required. Mr Kocur appealed.

Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) allowed Mr Kocur’s appeal in relation to rest breaks but agreed with the Tribunal’s findings on the equivalence of hours.

The EAT held that the requirement for equivalence of “duration of working hours” did not mean “precise equivalence” between the agency worker’s hours and those of the employee of the hirer. Any such requirement would entirely remove the flexibility inherent in the agency/hirer relationship. Mr Kocur appealed on the equivalent hours issue.

Court of Appeal

The Court of Appeal dismissed the appeal, agreeing with the conclusions of the Tribunal and EAT that the Regulations do not entitle agency workers to the same number of contractual hours as a comparator employee.

The Court held that the purpose of the Regulations was to ensure the equal treatment of agency workers and permanent employees while at work, in respect of rights arising from their work. There was nothing to suggest that the Regulations were intended to regulate the amount of work that agency workers were entitled to be given. Such a provision would be contrary to the whole purpose of making use of agency workers.

Comment

This decision is helpful in that it considered the practical issues at stake regarding the flexibility associated with agency workers. However employers should also be mindful of the earlier EAT decision clarifying other agency worker rights that were not considered by the Court of Appeal, our summary of this decision can be found here.

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.