The law states that agency workers are entitled to the same basic working and employment conditions of work as permanent employees after 12 weeks in the same job. In Kocur v Angard Staffing Solutions Ltd and Royal Mail Group Ltd, the Court of Appeal held that agency workers are not, however, entitled to be offered the same number of hours of work as permanent employees.
Mr Kocur had worked most weeks at the Leeds Mail Centre as an agency worker supplied by Angard Staffing Solutions since January 2015. Although there were variations in his pattern of working, it was typically around 20 hours per week.
In November 2015, he brought a tribunal claim against both Angard and Royal Mail alleging various breaches of the Agency Workers Regulations 2010. In particular, as is fundamental to the Court of Appeal decision summarised below, he asserted a right to be allocated the same standard hours of work as permanent employees.
Regulation 5 of the Agency Workers Regulations 2010 provides (subject to certain conditions not relevant here) that agency workers are entitled to the same basic working and employment conditions of work as permanent employees after 12 weeks in the same job. Regulation 6(b) of the Agency Workers Regulations 2010 states that one such condition is the same “duration of working time”.
Tribunal and EAT decisions
The employment tribunal held that the regulations must be read to give effect to the European directive and that meant that the principle of equal treatment was to provide that basic working and employment conditions of a temporary worker are at least those that would apply if they had been recruited directly by that undertaking to occupy the same job “for the duration of their assignment at a user undertaking”. The relevant term relating to duration of working time therefore relates to a particular assignment. It could for example, not require employees of the temporary work agency to have to work longer shifts than those of the hirer. It cannot, however, be construed so as to afford agency workers with a right to the same number of hours of work to that of the employee of the hirer.
The EAT agreed commenting that there was no requirement to provide precise equivalence between agency worker hours and those of employees of the hirer and any such requirement would remove the flexibility inherent in the agency/hirer relationship.
Decision of Court of Appeal
Dismissing the appeal, the Court held that the whole purpose of the directive and the regulations were to ensure the equal treatment of agency workers and permanent employees while at work. However, the Court pointed out that “there is nothing in either the preamble or its actual provisions to suggest that it is intended to regulate the amount of work which agency workers are entitled to be given”.
The reference to “the duration of working time” in regulation 6 had to be understood as a reference to “the time during which something continues”. In other words, it was a reference to periods of time during which a worker is working continuously (ignoring rest breaks), such as the working day or shift. It therefore followed that a worker had a right to be afforded equal treatment as a permanent employee in those periods but that did not entitle agency workers to the same number of contractual hours as a comparator.