In the recent matter of Kocur v. Angard Staffing Solutions Ltd., the Court of Appeal has ruled that agency workers are not entitled to the same number of working hours per week as permanent employees.
According to the Agency Workers Regulations 2010 (AWR), the basic terms and conditions for temporary agency staff fulfilling the same role for 12 weeks continuously are the same as those for permanent staff. This includes the “duration of working time”, but in what way? The issue before the court was whether Mr Kocur, an agency employee of Angard Staffing Solutions Ltd. working at Leeds Royal Mail centre, was entitled, after being there for 12 weeks, to the same number of working hours per week as permanent employees doing the same job.
Mr Kocur was typically working around 20 hours per week, but argued that the AWR entitled him to be offered around 39 hours a week, in line with Royal Mail’s directly employed staff. The Tribunal and EAT dismissed the claim, but the EAT did point out that when comparing terms and conditions it was better to do so term-by-term, rather than wholescale, so that less favourable terms cannot be deemed to be offset by a higher rate of pay
Mr Kocur appealed to the Court of Appeal, arguing that the “duration of working time” reference in the AWR entitled him to 39 hours per week, but the Court rejected this on the grounds that the reference related to limits under the Working Time Regulations, not the contracted hours of permanent staff. The terms of the AWR are designed to ensure equal treatment of agency workers, but the terms in question set a maximum period of working time so that agency workers are not required to work longer hours than direct employees. Importantly, the purpose of the AWR has nothing to do with regulating the amount of work to which an agency employee is entitled, which would create an entirely unworkable situation for employers.
The Court of Appeal’s decision will be welcomed by employers who rely on agency workers because work loads fluctuate. It preserves employers’ rights to flexibility when offering work to agency staff.
