Agency Workers Regulations - pragmatic equality of rights

Article 2 of the Temporary Agency Workers Directive is intended to ensure the principle of equal treatment is applied to temporary workers with regard to basic terms and conditions of employment.  The Agency Workers Regulations implement this principle into domestic law. 

In 2016, the claimant brought claims against Angard and RMG ("the Respondents") relating to annual leave and compensation for rest breaks which ended up with a Court of Appeal judgment confirming that agency workers were not entitled under the AWR to be allocated equivalent hours of work to comparable permanent employees.  Then, earlier in 2020, in a case involving the same parties the EAT confirmed that the AWR apply even if an agency only supplies workers to one hirer, as was the case in the supply of the claimant by Angard to RMG.

A further judgment - Angard Staffing Solutions Ltd & Anor v Kocur & Anor - has now been handed down by the EAT.  This was an appeal concerned with a number of rights conferred by the AWR on workers.  The claimant and a colleague, ("the Claimants") had presented twelve complaints of alleged AWR breaches by the same Respondents to the employment tribunal, and were successful in five of them.  This resulted in both the Claimants and the Respondents appealing to the EAT on a variety of grounds.

The judgment of the EAT has confirmed that:-

1. The right an agency worker has, during an assignment, to be informed by the hirer of any relevant vacant posts with the hirer is a right to be notified on the same basis as directly recruited employees.  Its purpose is to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.  An agency worker is similarly entitled to be given the same level of information about the vacancy as a directly recruited employee.    It is not though a right to be entitled to apply for and be considered for, internal vacancies on the same terms as directly recruited employees. 
2. The AWR do not entitle agency workers to work the same number of contractual hours as a comparable directly recruited worker. The reference to equal treatment in relation to “the duration of working time” in AWR means that if the hirer sets a maximum period when a comparable employee could be required to work, the hirer could not set a different maximum for agency workers.  It does not relate to a minor difference in length of shift as had been the case here.
3. Implementing a pay rise for agency workers at a later date than they were implemented for direct employees could potentially be a breach of the AWR.  This issue was remitted to a different employment tribunal to determine whether an implied term was ordinarily included in the terms and conditions of direct employees to the effect that pay rises should be implemented within a reasonable period and, if there was such an implied term, whether the agency workers had been treated less favourably than direct employees and/or had suffered loss.
4. It was not a breach of the AWR to provide direct employees with half hour "Work Time Listening and Learning" training sessions at a time when the agency workers were expected to carry on with their normal duties.  The AWR does not require equality of treatment in relation to the content of working time.
5. Giving comparable direct employees first refusal in relation to overtime opportunities did not breach the AWR.  The right to equality of treatment in relation to basic working and employment conditions concerned with “overtime” did not extend to a right to equal treatment in relation to opportunities for overtime.  In any event these particular Claimants would not have been included in the group of employees who had a contractual right to first refusal for overtime.
6. The right to equal treatment for basic working and employment conditions relating to “pay” did not extend to a right to the same pay information on pay slips (the agency workers' pay slips provided a less detailed breakdown of pay information).  Even if the Claimants has been employed directly they would not have had a contract term which specified a particular level of information on their pay slips.
7. The scheduling of short breaks for direct employees but not for agency workers was not a breach of the AWR.  Both sets of workers were paid at the same rate for their breaks.  The timing of breaks was not within the scope of the AWR because it did not concern “the duration of working time”.  In any event direct employees had no contractual right to have their shorter breaks scheduled in advance.

 In April this year agency workers benefited from the implementation of two pieces of legislation, the first removing the  "Swedish derogation" which, in certain circumstances, allowed agency workers to be engaged on cheaper rates than permanent employees and the second which required temporary work agencies to provide a Key Information Document to agency workers which includes details of rates of pay, who will pay them, how they will be paid and the type of contract they are being engaged on. Going forward their rights will be bolstered by some measures contained in the Good Work Plan (even though not specifically aimed at agency workers) including the right to request a more stable contract after 26 weeks service (included in the Employment Bill).