In Kocur v Angard Staffing Solutions Ltd & Royal Mail Group the Court of Appeal has clarified that agency workers are not entitled to the same number of working hours per week as permanent employees.
As a general rule, agency workers are entitled to the same basic terms and conditions of agency staff (after 12 weeks with the same hirer) as permanent staff. In particular the Agency Workers Regulations (AWR) ensure that one of the conditions enjoyed by agency workers is the “duration of working time”. This definition itself is not defined in the AWR. As a result, the Court had to determine whether this meant that an agency worker (after 12 weeks) who was doing the same job as a permanent employee should be entitled to the same number of hours per week that the permanent employee worked.
Mr Kocur was an agency worker supplied to work for the Royal Mail. After working there for 12 weeks raised a claim complaining that that he should have been given the same number of working hours as Royal Mail staff who had been directly appointed.
The Employment Tribunal, EAT and now the Court of Appeal all rejected Mr Kocur’s claim. The consistent rationale for this was that such an arrangement would deny the flexibility to engage agency workers in businesses with changing demand, and in turn this would ultimately defeat the purpose of businesses hiring agency staff in the first place. The Court also confirmed that “duration of working time” in the AWR was not intended to mean that agency workers should be offered the same number of working hours as a directly hired worker.
There have been relatively few cases regarding the AWR and therefore it has been difficult for employers to interpret the regulations so any cases such as this are key for business that need to use agency workers. Ultimately flexibility is key when hiring agency workers and the decision made in this case appears practical from a business perspective.
Although there has been discussion that the AWR may not be in place if the UK leaves the EU, after the Government’s Good Work Plan came out at the beginning of this year it appears that the AWR is unlikely to be set aside. It is therefore prudent for employers who rely on agency workers to ensure they have the correct systems in place for when such workers reach twelve weeks’ service and therefore are entitled to the same relevant terms and conditions as comparable employees.
If you have any questions about placing agency workers, you can discuss these with your dedicated Employment Solicitor.