Case update (1): Agency workers – Terms & conditions

Summary:  Are agency workers entitled to apply and be considered for vacancies on the same terms as directly-recruited employees under the Agency Workers Regulations 2010?

No, held the EAT in Angard Staffing Solutions Ltd & anor v Kocur & anor, 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 AWR give agency workers a right, from day one of an assignment, to be informed by the hirer of “any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer“.

Facts:  Angard Staffing Solutions (ASS) is an employment agency owned by Royal Mail and which exclusively provides agency workers to Royal Mail when it has a surge in demand for postal workers. Staff engaged by ASS brought claims against both ASS and the Royal Mail.  The claimants were held to be “agency workers” and alleged a broad range of breaches of their rights under the AWR.  Other aspects of this litigation reached the Court of Appeal in 2019 (see our August 2019 Newsletter here).

The EAT has made further decisions in respect of this case which helpfully clarify how the AWR rights operate in practice, and how far they go to ensure that agency workers are treated equally as compared to directly recruited employees.

The EAT held that:

• the right to information about a vacancy (see Background) does not encompass a right to apply and be considered for the vacancy on the same terms as directly hired employees.  In this case Royal Mail was therefore entitled to give preference to direct hires by advertising posts internally first;
• it was not a breach of the AWR for agency workers to be given different shift lengths, break schedules, availability of overtime, opportunity for training during working hours, or information on payslips when compared with direct hires. These provisions were not covered by the right of agency workers to the same basic terms and conditions in relation to pay and working time.
• a term relating to when a pay rise was implemented would be covered by the AWR. The issue was remitted to the Tribunal to determine whether there was an implied term in the contracts of directly-hired employees that any pay increase would be implemented within a reasonable period of time and, if so, whether this was breached by implementing the pay rise for agency workers six months later than for direct hires.

Implications: This is a very helpful EAT decision for employers who use agency workers. The decision provides useful examples of how the rights granted to agency workers under the AWR apply in practice.  Also, the strict and narrow interpretation should help limit the extent to which agency workers need to be treated equally as compared to direct recruits.

It is particularly helpful for employers in finding that agency workers do not have the right to apply for vacancies on the same terms as direct recruits. Businesses hiring agency workers must provide them with the same information about relevant vacancies as direct recruits, but do not have to allow agency workers to apply for those vacancies on the same terms.