Angard Staffing Solutions Ltd and Another v Kocur and Another (Agency Workers and Contract of Employment): EAT 11 Dec 2020

This appeal is primarily concerned with the scope of the rights conferred on agency workers by and the Agency Workers’ Regulations 2010 (‘the AWR’), which implements the Agency Workers Directive (‘the Directive’) into domestic law. The EAT found that:
(1) The right conferred by regulation 13(1) of the AWR (derived from Article 6.1 of the Directive), which provides that an agency worker has, during an assignment, the right to be informed by the hirer of any relevant vacant posts with the hirer, to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer, does not mean that the agency worker has a right to be entitled to apply for and be considered for, internal vacancies on the same terms as directly-recruited employees. It is a right to be notified of the vacancies on the same basis as directly-recruited employees, and a right to be given the same level of information about the vacancies as the directly-recruited employees. Angard and Royal Mail’s appeal on this issue was allowed;
(2) There was no breach of regulation 5 of the AWR arising from the fact that shift lengths for the claimant agency workers were 12 minutes longer than they would have been if the claimants had been recruited directly. The disparity arose because the weekly working hours for direct recruits were 39 hours, whereas agency workers were given shifts on the basis of a 40-hour week. Agency workers were paid for the extra time that they worked. The AWR (and the Directive) do not entitle agency workers to work the same number of contractual hours as a comparator directly-recruited worker. The reference to equal treatment in relation to ‘the duration of working time’ has a more limited meaning: it 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. This conclusion is consistent with the rulings of the EAT and the Court of Appeal in Kocur 1 (Kocur v Angard Staffing Solutions Ltd and another [2018] ICR 1126, and [2019] EWCA Civ 1185; [2020] ICR 170). Angard and Royal Mail’s appeal on this issue was allowed;
(3) A pay rise was implemented for the claimant agency workers some six months after it had been implemented for comparable direct employees, even though, eventually, both groups of workers were paid at the same rate for the relevant period. The EAT found that there could, potentially, be a breach of the requirement in regulation 5 of the AWR to provide equal treatment to agency workers for basic employment and working conditions relating to ‘pay’, if pay rises were implemented for agency workers at a later date than they were implemented for direct employees. The ET erred in law on this issue. The claimants’ appeal on this ground was allowed and the matter remitted to a different ET 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) The ET had not erred in law in holding that Angard and Royal Mail had not acted in breach of the obligation regarding equal treatment in relation to the ‘duration of working time’ by providing weekly half-hour ‘Work Time Listening and Learning’ training sessions for direct employees at a time when agency workers were expected to carry on with their normal work. There is nothing in the wording of either the Directive or the AWR to suggest that there is a requirement for equality of treatment in relation to the content of working time. The claimants’ appeal on this issue was dismissed;
(5) Comparable direct employees were given first refusal in relation to overtime opportunities in preference to agency workers. The ET was right to find that this did not breach the claimants’ rights under 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. Further, and in any event, the ET was right to undertake the hypothetical exercise of consider whether, if the claimants had been directly recruited, they would have been included in the group of employees who had a contractual right to first refusal for overtime. The ET was entitled to find that they would not have been included. The Claimants’ appeal on this issue was dismissed;
(6) The pay slips of the claimant agency workers provided a less detailed breakdown of pay information than the payslips of direct employees. The right, under regulation 5(1) of the AWR, 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. In any event, the ET was entitled to conclude that, if the claimants had been employed directly, they would not have had a contract term which specified a particular level of information on their pay slips. Accordingly, the ET did not err in law on this issue and the claimants’ appeal on this point was dismissed;
(7) The breaks of agency workers within each shift were of the same duration as those of comparable direct employees. Both sets of workers were paid at the same rate for their breaks. However, the short breaks in each shift were scheduled in advance for direct employees, but not for agency workers. The ET was right to find that this did not breach the AWR. The timing of breaks was not within the scope of regulation 5(1) of the AWR because it did not concern ‘the duration of working time’. In any event, the ET was entitled to find that direct employees had no contractual right to have their shorter breaks scheduled in advance. The claimants’ appeal on this point was dismissed.
Angard also appealed on the basis that the ET had erred in law in finding that Angard had failed in its obligations to provide the claimants with an accurate and up-to-date statement of particulars of their employment, as required by sections 1 and 4 of the Employment Rights Act 1996, because the terms and conditions set out in their section 1 statements did not reflect the rights conferred upon them by the equal treatment provisions of the AWR. Angard contended that the AWR did not create any contractual rights. The EAT declined to decide this issue on the basis that the appeal was premature, as the ET had not itself yet ruled on this point.
[2020] UKEAT 0105 – 19 – 1112
Bailii
England and Wales

Updated: 09 May 2021; Ref: scu.661666