Kocur v Royal Mail Group Ltd - Agency workers - equal treatment

Employment Appeal Tribunal – February 2018

Did higher hourly pay for an agency worker compensate for differences in holiday and payment for breaks when compared to an end-user’s employee?

Article 5 of the EU Temporary Agency Workers Directive creates the principle of equal treatment; where basic working and employment conditions  for agency workers should be “at least those” that would apply if they were a direct recruit for the agency worker.

The domestic legislation, the Agency Workers Regulations 2010 (‘AWR’), states agency workers are entitled to “the same” basic working and employment conditions as a direct hire once they have completed 12 continuous weeks in the same role with the same hirer. These terms and conditions include pay, the duration of working time, rest breaks and annual leave.

Facts

From 26 January 2015, Kocur was employed by an employment agency. He was supplied, as an agency worker, to the Royal Mail Group to carry out work at a mail centre in Leeds.

By June 2015, Kocur has completed 12 continuous weeks with the end-user; triggering his right to equal treatment under the AWR. In October 2015, Kocur raised a grievance with the agency and the end-user about aspects of his pay and other conditions, including that he was not provided with the same length of breaks as direct recruits. The grievance concluded and his entitlement to breaks was changed.

Kocur’s concerns about other areas were left unresolved. This included concerns regarding: a failure to be provided with an access card to the premises; not being entitled to membership for the on-site fitness centre; payment for rest breaks; and a lesser entitlement to annual leave. He made a claim to the employment tribunal on the basis there was a breach of the AWR.

Tribunal

The employment tribunal found Kocur’s rights under the AWR had been infringed in relation to the provision of an access card and entitlement to membership of the fitness centre.

In relation to payment for breaks, the tribunal found Kocur was entitled to a one hour rest break when completing an eight-hour night shift but was only paid for 30 minutes of this break. Direct recruits were entitled to the same rest break but were paid for the whole hour.

With regards to annual leave entitlement, the tribunal found Kocur was entitled to 5.6 weeks of annual leave whereas direct recruits were entitled to 6.1 weeks’ annual leave.

Although there were disparities, the tribunal determined there was no breach of the Regulations because these were compensated by Kocur receiving a higher hourly rate – Kocur was paid an hourly rate of £10.50 whereas direct recruits were paid £9.60 per hour.

Kocur appealed.

EAT

Although the Directive and the AWR have different phrases, the EAT determined that “the same” basic working and employment conditions means “at least” those of a comparable direct employee of the end-user. This will provide for a minimum level of entitlement but does not mean there is a maximum on entitlements.

The approach to be taken is a term-by-term approach and, the EAT commented, there is nothing in the Directive, or the AWR, allowing the agency or hirer to offset a failure to provide a specific entitlement with a higher rate of pay.

Applying this to the case, there was a breach of the Regulations as the agency worker did not receive at least the same amount of annual leave or pay for his rest breaks as a comparable employee.

Note for employers

This decision makes it clear that employers and agencies cannot rely on a higher entitlement for one employment condition to offset a failure to provide at least the same entitlements for other conditions.

The EAT did discuss that the requirement to provide at least the same entitlement can be met by different methods, for example, providing rolled-up holiday pay, however these will have to be clear and transparent.

The EAT also considered “duration of working time” and found there was no requirement for employers to provide agency workers with the same amount of working hours as employees – the entitlement refers to working time, e.g. the length of a night shift for an agency worker should not exceed the length of a comparable employee's night shift.

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