A recent case in the Employment Appeal Tribunal (Kocur v Royal Mail) has brought clarification to the rights of agency workers under the Agency Worker Regulations 2010.
What are the Agency Worker Regulations?
An Agency Worker is a worker supplied by a temporary work agency to a hirer to work, normally for a temporary period. The Agency Worker Regulations give agency workers the entitlement to the same or no less favourable treatment for basic employment and working conditions to a comparable direct hire employee, if they complete a qualifying 12 weeks in a particular job.
The rights conferred under the Regulations are often referred to as ‘Day 1’ and ’12 week’ rights.
Day 1 Rights
From Day 1 of their employment, an Agency Worker is entitled to:
- the same access to facilities such as staff canteens, childcare and transport as a comparable employee of the hirer; and
- be informed about job vacancies.
12 Week Rights
After a 12 week qualifying period, an Agency Worker will be entitled to the same basic conditions of employment as if they had been directly employed by the hirer on day 1 of their assignment. This specifically refers to:
- Pay – this includes any fee, bonus, commission or holiday pay; and
- Working Time Rights – for example, including any annual leave above the statutory minimum, rest breaks and the duration of working time.
The case of Kocur v Royal Mail dealt with ’12 Week Rights’. Mr Kocur, an Agency Worker, raised a grievance about his pay and other conditions after he had been working for Royal Mail for approximately 10 months. He alleged that his terms were less favourable than those who had been directly employed by Royal Mail. His complaints included:
- That he was receiving shorter breaks;
- That he had not been provided with a swipe card to access the premises;
- That he was not able to join the on-site gym
- Less favourable payment for rest breaks; and
- His entitlement to annual leave.
He was unable to resolve all of his complaints though the grievance process and as such took his complaints to the Employment Tribunal.
The Employment Tribunal found that his rights had been breached in some regards (such as the lack of provision of a swipe card), however disagreed with Mr Kocur’s claims that he had been treated less favourably in respect of paid breaks and annual leave. Whilst the Tribunal accepted that he was only paid for 30 minutes of a one hour break and was entitled to 28 days of annual leave, whereas a comparable direct hire was entitled to payment for the full 1 hour break and 30.5 days annual leave, the disparities were compensated by Mr Kocur’s higher hourly rate (he was paid £10.50 per hour whilst direct hires were paid £9.60 per hour).
Unhappy with the decision, Mr Kocur launched an appeal.
Decision of the EAT
On appeal, The EAT upheld Mr Kocur’s complaints and held that after 12 weeks, an Agency Worker is entitled to the same basic working and employment conditions as the hirers comparable employees, and paying an Agency Worker a higher rate of pay for less holiday and rest breaks would not be sufficient.
However, there was no requirement to provide an Agency Worker with the same number of working hours as the hirer’s employees. This is because such an requirement would deprive the relationship between hirer and agency/agency worker of flexibility which of course is the reason many employers opt to use agency staff.
Lessons to Learn
- Once an Agency Worker has worked with an employer for 12 weeks, the right to parity of terms is applicable; and
- A failure to provide equality of terms cannot be compensated for by a higher rate of pay.