The rights of agency workers

14 August 2019

The Agency Worker Regulations 2010, which came into force on 1 October 2011, introduced new rights to agency workers. Under Regulation 5, after 12 continuous weeks’ work, agency workers are entitled to the same basic working and employment conditions as a permanent employee doing the same job. This includes pay, the duration of working time, night work, rest periods, rest breaks and annual leave.

In Kocur v Angard Staffing Solutions Limited & others, the Court of Appeal considered what the term ‘duration of working time’ actually means.

Mr Kocur was employed by Angard Staffing Solutions Limited, an employment agency, and was placed in a job with Royal Mail Group Limited (“RMG”), working at the Leeds Mail Centre. He typically worked less than 20 hours per week. In November 2015, Mr Kocur brought a claim against the two Respondents (the agency and the hirer) for a number of breaches of his 12-week rights under the AWR, one of which was failure to allocate him the same number of hours’ work compared to permanent employees of RMG.

The case proceeded to the Court of Appeal, who did not agree with the Claimant’s argument that the term ‘duration of working time’ covered the number of hours that a worker is required to work. It was noted that there was nothing in either the preamble or the provisions of the AWR that regulated the amount of work which agency workers are entitled to be given. Having regard to the Working Time Directive and the Working Time Regulations 1998, the Court of Appeal held that the term ‘duration of working time’ means that agency workers are entitled to be treated equally with regards to the maximum number of hours worked. The Court’s interpretation means that an agency worker should not be required to work longer hours than their permanent counterparts.

Businesses who rely on agency workers to supplement their staffing levels need to be aware of, and adhere to, the “day one” rights and 12-week rights afforded to agency workers under the AWR. It is well-established in case law that these rights cannot be compensated for by a higher hourly rate or other beneficial terms. However, this case does reinforce the fact that agency staff are often engaged to fill gaps in staffing needs and ensures that businesses are not unreasonably burdened with the obligation to offer agency staff the same number of hours worked by their permanent employees.

By Michelle Tudor

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