Case Update (1): Agency Workers – Hours of Work

Summary:  Are agency workers entitled to the same number of working hours per week as permanent employees?

No, says the Court of Appeal in Kocur v Angard Staffing Solutions Ltd available here.

Background:  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.

Facts:  Mr Kocur was an agency worker supplied by Angard Staffing Solutions Ltd to work at the Leeds Royal Mail centre. Mr Kocur was typically allocated less than 20 hours work each week. Once he had completed 12 weeks’ work, he claimed that the AWR entitled him to be offered the same hours of work as Royal Mail’s directly employed staff – around 39 hours a week. The Tribunal and EAT dismissed his claim.  Although, importantly, the EAT did confirm that a term-by-term approach rather than a package approach should be adopted when comparing terms and conditions. This means that less favourable terms cannot usually be offset by a higher rate of pay.

Mr Kocur appealed to the Court of Appeal.  He argued that the AWR entitle agency workers who have completed the qualifying period to the same terms and conditions relating to “the duration of working time” as permanent staff. This meant that he was entitled to be offered 39 hours of work a week, in the same way as employees.

The Court of Appeal rejected that argument and instead found that the reference to “the duration of working time” is related to working time limits under the Working Time Regulations, not the contracted hours of permanent staff. It refers to terms that set a maximum length for a period of working time, to ensure that agency workers do not have to work for longer periods than employees. That conclusion was reinforced by the purpose of the AWR, which is to ensure that agency workers receive equal treatment while they are at work, not to regulate the amount of work which agency workers are entitled to be given. Any other conclusion would undercut the flexibility that is inherent in the end user/agency worker relationship and 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.

Implications:  This is a welcome decision for employers with a requirement to use agency workers to fill staffing gaps as work fluctuates. It confirms that agency workers do not need to be offered the same weekly hours as the hirer’s employees. Flexibility is key for hirers, and had this decision gone in Mr Kocur’s favour, much of that flexibility would have been lost.