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  The AWR are often cited by commentators as an example of employment legislation which may be repealed following Brexit.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.