Hirers retain flexibility as agency worker claim denied by the Court of Appeal
In a decision that will be welcomed by employers with a requirement to use agency workers to fill staffing gaps as work fluctuates, the Court of Appeal has confirmed that those workers are not entitled to the same number of working hours per week as permanent employees.
The Agency Workers Regulations 2010 (AWR) were introduced to ensure that the basic terms and conditions of temporary agency staff are the same as those enjoyed by permanent staff (once the agency worker has been in the same role for 12 continuous weeks). The relevant “terms and conditions” under the AWR include the “duration of working time”. The issue that the courts had to determine was whether this meant that an agency worker doing the same job as a directly employed employee should, after the 12 week qualifying period, be entitled to work the same number of hours per week that that permanent employee enjoyed.
Mr Kocur was an agency worker supplied to work at the Leeds Royal Mail centre. He claimed that after 12 weeks he should have been allocated the same number of working hours as the directly hired Royal Mail employees. The Tribunal, EAT and ultimately Court of Appeal all rejected his claim. Any arrangement that denied the hirer the flexibility to engage agency workers according to the fluctuating demands of the business would defeat the purpose of hiring agency staff. It was unworkable and not what was intended by the AWR.
The “duration of working time” referred to in the AWR related to working time limits under the Working Time Regulations, not the contracted hours of permanent staff. Any other reading of the AWR would enable agency workers to pick the permanent member of staff who worked the hours that suited them most (as there could be many different working patterns in the business) which would be entirely unworkable.
Fortunately for businesses that need to use agency workers to cover fluctuating work patterns, this is a very practical decision. Flexibility is the key for hirers, and had this decision gone in Mr Kocur’s favour, much of that flexibility would have been lost.
Since the AWR came into force in 2011 there have been relatively few related cases before the tribunals. The AWR are often cited by commentators as an example of employment legislation which may be repealed following Brexit. However, following the Good Work Plan, this does not seem to be the direction of travel at all. In April 2020 the widely used Swedish Derogation (a partial exemption from the AWR under which an agency worker may be given a permanent contract of employment with an agency, and continue to be paid between assignments) will be repealed. This will mean that all agency workers will be entitled to parity of pay after 12 weeks, and agencies must inform their relevant agency workers by 30 April 2020 that the Swedish Derogation no longer applies.
For more information, please contact Anne-Marie Balfour.
Sponsor Licence Compliance: Key considerations & how to be audit ready
Join us for the third in our series of mini webinars on post Brexit immigration about sponsor licence compliance.
COVID-19 Vaccination – can an employer make it compulsory for employees?
We review what legal issues to take into account when considering to make vaccination compulsory as an employer.
Linking ESG and Executive Pay
How does a business go about embedding a focus on strong ESG performance into the structures and culture of its organisation?
Amelia Goodwin and Georgina O'Sullivan write for Pharmacy Business on managing employee performance
Why contractors should prioritise performance management of employees as a regular feature of their business strategy.
The UK’s New Skilled Worker & Intra-Company Visa Routes: a closer look
Taking a closer look at the UK’s new visas to assist UK businesses.
Have your say: MAC call for evidence on Intra-Company Visa Route
The MAC, has launched a call for evidence on the Intra-Company Transfer (ICT) immigration route.
Sleep-in workers not entitled to NMW for entire shift
A unanimous ruling by The Supreme Court in the Royal Mencap v Tomlinson-Blake and another case.
Amelia Goodwin quoted by People Management, Home Care Insight and Care Home Management on the implications of the Supreme Court's ruling in Royal Mencap Society v Tomlinson-Blake
The court found that care providers do not have to pay the minimum wage to staff for time that they are asleep but on call during shifts.
It’s all about the data…why has the government delayed hospitality reopening again?
Michael Powner quoted by People Management on the implications of Uber's decision to pay drivers minimum wage
Uber’s rollout of living wage will put further pressure on other gig economy firms to follow suit.
Rose Carey, Kelvin Tanner and Kate Gamester write for Compliance & Risk on navigating the UK's new immigration system
The article highlights the compliance pitfalls and how organisations can adapt to avoid them.
The UK’s post-Brexit rules for skilled workers – Key implications for the construction industry
As a result of the new Points Based Immigration System , UK companies in the construction sector will not be able to sponsor labourers.
How to manage redundancies: employee rights on redundancy
What rights do employees have when a redundancy exercise is carried out?
Michael Powner quoted by Personnel Today on the implications of the Uber Supreme Court ruling on the gig economy
While the case is fact specific, the decision is likely to be a very persuasive authority for tribunals ruling on others in the gig economy.
Michael Powner quoted by Bloomberg, PA Media and People Management on the Supreme Court's ruling on the employment status of Uber drivers
The Supreme Court unanimously found that Uber drivers are workers under UK law.
Nick Hurley quoted by the Daily Mirror on 'no jab, no job' policies
'No jab, no job' may seem clear and concise, but mandatory policies requiring the Covid-19 vaccine are far from straightforward.
How to manage redundancies: practical steps
What are the practical considerations when carrying out a redundancy exercise?
EMI share options, Covid-19, and Brexit – where are we now?
What are the new measures to employers operating EMI schemes that have been affected by the pandemic?
How to manage redundancies: initial planning
What should employers consider when preparing for a redundancy situation?
Post-Brexit Implications for UK/EU Business Travel
How companies need to monitor the activities of their employees on business trips in a post-Brexit world.