EAT has provided further clarity on agency worker rights

This case, Angard Staffing Solutions Ltd and another v Kocur and another, involved the Agency Workers Regulations 2010 (AWR) which gives agency workers the day one right to receive information from the hiring company of any internal vacancies available. The AWR also stipulates that agency workers must be given, after 12 weeks of work, the same basic working conditions as they would receive if they had been directly recruited by the hiring company.

Angard Staffing Solutions is the recruitment partner for Royal Mail Group and is wholly owned by the courier company, providing agency workers directly to it. In a previous case against Angard, there were several claimants, including Mr Kocur, who brought a claim concerning whether individuals assigned to Royal Mail could be considered agency workers. Following the ruling that confirmed that the claimants were agency workers, two of these claimants then proceeded to bring claims against both Angard and Royal Mail over whether agency workers supplied by Angard have the legal protections under the AWR and what those rights are.

These claims included that AWR laws had been breached in several ways, including agency workers:

  • being informed that they were ineligible to apply for certain internal vacancies unless they were advertised externally
  • having to work longer shifts than directly hired employees
  • being offered overtime only if directly hired employees did not volunteer for it
  • having to wait to be given a pay rise for a longer period than directly hired staff.

With regards to vacancy information, the claimants had argued that the right to information must also amount to a right to apply for the vacancy. However, the Employment Appeal Tribunal (EAT) held that the right for agency workers to be notified of job vacancies available at a host company is purely a right to information, which does not create an automatic right to be allowed to apply or be considered for the vacancy. The EAT went on to confirm that agency workers have the same right to receive information as those who have been directly recruited by the hiring company, and puts agency workers at an advantage when compared to external candidates who may or may not either receive the same level of information or hear of a vacancy in the first place.

Touching on the issue of shift lengths and overtime, the EAT explained that the AWR right for agency workers to receive the same working conditions as direct recruits after 12 weeks of work includes working time aspects. However, this right does not give agency workers the same rights to shift lengths or pre-scheduling of breaks. In the same vein, there was no automatic equal right for agency workers to be granted the same overtime options as end-user staff.

Regarding pay, the EAT held that delaying agency workers’ pay was a potential breach of AWR provisions as this relates to the right for agency workers to have the same working conditions as direct recruits – just as where shifts and overtime are concerned. However, it does not translate to the contents of agency workers’ pay slips having to be the same as that which is contained within a direct recruit’s pay slip.

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