Agency Workers Not Entitled to Same Number of Hours As Permanent Employees

Background

The Agency Workers Regulations 2010 (the Regulations) provide that an agency worker who has been in the same role with an employer for 12 continuous weeks is entitled to the same basic working and employment conditions as an employee doing the same job. The Regulations provide for these conditions to include the duration of working time.

Mr Kocur was an agency worker supplied to the Royal Mail by Angard Staffing Solutions Ltd. Having worked at Royal Mail for over 12 weeks, he was entitled under the regulations to the same basic conditions as Royal Mail's employees. He brought a claim against Angard under the regulations on several grounds, including that he had typically been allocated less than 20 hours of work per week, less than the standard 39 hours per week worked by Royal Mail's employees.

The Employment Tribunal and the Employment Appeal Tribunal dismissed Mr Kocur's claim that he was entitled to the same number of hours as a Royal Mail employee. They held that to interpret the Regulations in a way that would guarantee parity of hours would be inconsistent with the very nature of agency work, which caters to fluctuating demands for labour. Mr Kocur appealed to the Court of Appeal.

The Court of Appeal's Decision

The Court of Appeal found that Mr Kocur's entitlement to the same basic working and employment conditions did not extend to same number of hours of work as Royal Mail's employees.

The reasoning for this was twofold. Firstly, the underlying purpose of the Regulations is to ensure equal treatment of agency workers and permanent employees while at work in respect of rights arising from their work, but it is not intended to regulate the amount of work that they are given. Secondly, a natural understanding of the term "duration" would not include a term specifying the number of hours worked in a working week. Instead the correct interpretation of 'duration' in this context would be in relation to the setting of maximum limits on the number of hours that can be worked in any period.

Mr Kocur's appeal was therefore dismissed.

Best Practice

Employers who make use of agency workers alongside their own employees or workers to do the same kind of work should be mindful to ensure parity in relation to the basic conditions provided. Although this case is helpful in the sense that it confirms that this does not extend to the number of hours offered to agency workers therefore maintaining the operational flexibility the agency worker provides, it remains good practice for employers to regularly audit their use of agency workers and the terms they are working under to minimise the risk of claims. Similarly for work agencies, it is important to liaise with employers on a regular basis to understand the basic conditions offered to their employees to ensure that agency workers placed with them are on comparable terms.

For more information please contact Joanne Oliver in our Employment Law team on 0117 314 5361, or complete the form below.