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 The AWR are often cited by commentators as an example of employment legislation which may be repealed following Brexit.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.
Our thinking
IBA Annual Conference
The IBA heads to Miami for its 2022 Annual Conference bringing together thousands hundreds of lawyers from around the world.
Rose Carey
Could the UK’s Life Sciences Vision be restricted by its Immigration Policy?
We explore some of the visa options that may be open to businesses in the sector and their relative pros and cons.
Briony Richards
AI and HR - How can employers reduce the risks associated with using artificial intelligence to help manage their workforce?
If they are not mindful of the risks associated with AI, employers may find themselves in breach of employment and data protection law.
Sophie Clark
Are workers entitled to the Bank Holiday off for the Queen’s Jubilee? Don’t bank on it!
Nick Hawkins
Nick Hawkins writes for Employment Law Journal on demystifying employment contracts
Key considerations for drafting effective post- termination restrictions
Kelvin Tanner
Brexit: Implications for Immigration
Find out what you need to know about what Brexit means for you, your workers and your organisation.
Rose Carey
Is the UK open for business? A discussion with the Home Office
We hosted an immigration webinar with the policymakers from the Home Office.
Is the UK open for business? A discussion with the Home Office
Join our Immigration team for a live webinar with policymakers from the Home Office.
Rose Carey
Relocating to the UK – Post Tier 1 (Investor)
The UK government closed the Tier 1 Investor visa route with immediate effect on 17 February 2022.
Lesley O’Leary
Briefing publishes Lesley O’Leary 's comments on hybrid working and the impact on collaboration
Briefing publishes Lesley O’Leary 's comments on hybrid working and the impact on collaboration
Emily Chalkley
How to tackle a large Gender Pay Gap
Nick Hawkins
Nick Hawkins writes for Employment Law Journal on demystifying employment contracts
Nick Hawkins explains the key legal principles that govern contracts of employment.
Michael Powner
Michael Powner and Emily Chalkley write for People Management on who pays the price for vicarious liability
Michael Powner and Emily Chalkley explain whether an employer should ever be liable for wrongdoing committed by their employees.
Katherine Dennis
New Global Mobility visa route – coming Spring 2022
A new Global Business Mobility visa route is launching in the Spring of 2022.
Clare Davis
National Minimum Wage – At risk of committing a criminal offence?
To best prepare, you need to understand the nature of the risks involved and take steps to minimise them.
Rose Carey
Summary of corporate immigration changes 2022
The Home Office has announced a raft of business immigration changes which will affect employers and workers alike.
Becky Lawton
New family-friendly rights – but will they be implemented in 2022?
The government has committed to introducing several new family rights following a number of consultations over the last couple of years.
Becky Lawton
The talent gap, recruitment and retention issues
Employers continue to struggle attracting and retaining talent in a market rife with labour shortages and widely-reported pay pressures.
Paul McCarthy
New Employer and Landlord Digital ID Checks – A Good IDea?
Becky Lawton
Becky Lawton writes for Employee Benefits on whether new staff family rights come into force in 2022
The government has committed to introducing several new family rights following a number of consultations over the last couple of years.