Tue 20 Aug 2019

Agency Workers Regs don't require equality of hours

The purpose of the Regulations is to ensure the principle of equal treatment, but not to the extent of guaranteeing hours of work.

By it's own description (in Article 2) the aim of the Agency Workers Directive is to ensure the protection of temporary workers and to improve the equality of temporary agency work by ensuring the principle of equal treatment is applied to temporary agency workers.  The Agency Workers Regulations 2010 (the "Regulations") are the implementation into domestic law of the requirements of the Directive.

The Regulations entitle agency workers to the same basic working and employment conditions as a comparable employee recruited directly by the hirer.  That requirement is deemed to be met where an agency worker is working under the same relevant terms and conditions as a comparator, and "relevant terms and conditions" include terms relating to the "duration of working time".

In Kocur v Angard Staffing Solutions Limited & Royal Mail Group Limited Mr Kocur was employed by Angard, a wholly owned subsidiary of Royal Mail Group ("RMG") that supplied workers to RMG. He worked most weeks for RMG but was typically allocated less than 20 hours per week.  About 10 months after starting work Mr Kocur brought proceedings in the employment tribunal against both Angard and RMG alleging various breaches of the Regulations.   His claim was upheld in part, but claims that he did not receive the same rest breaks as RMG employees and that he was entitled to be allocated equivalent hours of work to comparable employees were dismissed.  The EAT allowed an appeal as regards the rest breaks, but dismissed the claim based on equivalence of hours.

The equivalence of hours claim then went before the Court of Appeal.  Mr Kocur's position was that terms and conditions relating to duration of working time refers to any term dealing with the amount of time that a worker works and accordingly covers the term in a contract that specifies the amount of work that the worker is both entitled and required to work.  In short that means if the comparator's contract specified a 39 hour week then Mr Kocur was entitled to that number of hours. 

The Court of Appeal found no difficulty in dismissing this argument.  The purpose of the EU Directive and the Regulations is to ensure the equal treatment of agency workers and permanent employees while at work, and in respect of rights arising from their work.  They are not intended to regulate the amount of work which agency workers are entitled to be given. 

The Court of Appeal and both tribunals also recognised the impracticality of the argument being made on behalf of Mr Kocur.  The whole purpose of making use of agency workers is to afford the hirer flexibility in the size of the workforce available to it from time to time.  If the agency workers could demand specific hours by virtue of reference to any number of comparator permanent employees working different hours it would be impossible for the agency to share out work appropriately.  If all agency workers were to demand 39 hours a week the number employed by Angard would need to dramatically reduce and the ability to provide the flexibility and fluidity necessary to cope with the frequently changing demands of RMG would disappear. 

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