Agency Worker Rights - Can Higher Pay Compensate for Less Favourable Terms?
In the recent case of Kocur v Angard Staffing Solutions Ltd, the Employment Appeal Tribunal (EAT) held that a failure to give qualifying agency workers the same basic terms and conditions as employees...
...hired directly by the employer cannot be compensated by a higher rate of pay.
Who Is a Qualifying Worker?
Under the Agency Workers Regulations 2010 (the Regulations), agency workers who have worked for 12 continuous weeks within the same role are entitled to "the same basic working and employment conditions" as permanent employees carrying out an equivalent role.
Facts of the Case
The Claimant agency worker was supplied to work for Royal Mail alongside permanent employees. The Claimant's hourly rate of pay was 90p higher than the rate for permanent employees but he received 2.5 days less holiday a year and 30 minutes less paid rest break every day.
The Claimant had worked at Royal Mail for over 12 weeks and was therefore entitled to the same basic terms as the Royal Mail employees. He brought a claim for breach of the Regulations.
EAT's Decision
The EAT held that there had been a failure to provide the Claimant with parity of terms. The enhanced hourly rate of pay he received could not offset the less favourable terms around annual leave and paid rest breaks. Although over the course of a working day the Claimant received slightly more pay than directly employed staff - there had been a breach of the Regulations.
The EAT held that "same basic working and employment conditions" should be looked at on a strict individual term-by-term basis, rather than reviewing the overall package of entitlements. This is the case even if the overall package received by agency workers is equivalent or better than that received by directly engaged staff.
The EAT also noted that "the same" was construed as meaning "at least the same" and did not preclude agency workers from receiving enhanced pay or other entitlements. Higher rates of pay can compensate for job insecurity but not for less favourable basic rights.
Best Practice
The case serves as a useful reminder of the rights enjoyed by agency workers, especially those who have worked in the same role for 12 continuous weeks. It is necessary for employers to engage with agencies supplying workers to ensure that those workers are receiving the same basic terms as directly engaged staff. It is also important to remember that agency workers have the right to access collective facilities and to receive information about employment vacancies from day one of their assignment.