Kocur v Angard Staffing Solutions Ltd

UKEAT/181/17

Case details

Case citations
[2018] UKEAT 0181_17_2302 · [2018] ICR 1126 · [2018] WLR (D) 223
Court
Employment Appeal Tribunal
Judgment date
23 February 2018
Judgment text

This feature is available to zoomLaw Pro members.

Subjects
Employment law Agency workers Equal treatment
Keywords
Agency Workers Regulations 2010 Regulation 5(1) annual leave rest breaks rolled-up holiday pay transparency duration of working time Directive 2008/104 Working Time Regulations 1998
Outcome
appeal allowed in part
Judicial consideration

This feature is available to zoomLaw Pro members.

Summary

It is not permissible to offset a shortfall in the amount of contractual annual leave by paying an enhanced hourly rate unless the payment for that leave is transparent and at least equals the comparator's holiday pay. Rather than requiring identical mechanisms, Regulation 5(1) AWR requires that each relevant term, including amount of annual leave and remuneration for it, be at least equivalent to the comparator. Payment mechanisms may differ if transparent and equivalent. The same principle applies to pay for rest breaks; an agency worker must receive at least the same pay for the break. The AWR does not require precise equivalence of total hours worked and must preserve the flexibility inherent in agency work.

Factual background

The appellant was an agency worker engaged through an employment agency and placed with a large hirer. After completing the 12-week qualifying period under the Agency Workers Regulations 2010 ("AWR"), he claimed parity with direct recruits in several respects. The Employment Tribunal found some breaches but rejected claims about annual leave and payment for rest breaks, concluding an enhanced hourly rate compensated any shortfall. The appellant appealed on three grounds challenging the Tribunal's approach to Regulation 5(1) AWR: (1) that fewer contractual days' annual leave could not be compensated by an enhanced hourly rate; (2) that he was entitled to the same weekly hours as a direct recruit; and (3) that a higher hourly rate could not compensate for not being paid for part of rest breaks. The EAT considered Directive 2008/104, the AWR and domestic guidance and heard argument on the correct interpretive approach and transparency of rolled-up payments.

Held

(1) Overall disposition: Appeal allowed in part. Grounds 1 and 3 are allowed; Ground 2 is dismissed. (2) Interpretation of Regulation 5(1) AWR: the phrase "the same basic working and employment conditions" is to be construed in light of Directive 2008/104 so that it denotes a floor of protection; it should be read as "at least" those applicable to direct recruits. This avoids absurd consequences and preserves scope for agency workers to receive more favourable terms in some respects (see paras [Analysis and Conclusions - Ground 1]). (3) Annual leave (amount): an agency worker must have an entitlement to at least the same amount of annual leave as the comparator. A voluntary or notional allocation of non-assigned time does not constitute an "entitlement" under Regulation 5(1). A shortfall in days cannot be offset by an opaque rolled-up enhancement unless that enhancement is transparent and demonstrably provides the equivalent remuneration for the additional leave. On the facts the Tribunal erred in finding parity of amount and payment; ground 1 is upheld. (4) Remuneration for annual leave: while the mechanism of payment may differ, the term as to remuneration for leave must be at least equivalent. Payments in lieu are permissible only where lawful for employees or on termination. Transparency and comprehensibility are required. The Tribunal erred because the enhanced hourly rate was not shown to be transparent or to equate to the 2.5 days' entitlement. (5) Rest breaks (pay): the term relating to payment for rest breaks must be at least equivalent. There was a substantive difference in pay for the one-hour rest break. Looking at overall shift pay is insufficient. The Tribunal erred; ground 3 is upheld. (6) Duration of working time (hours): the AWR does not require precise equivalence of weekly hours between agency workers and hirer's employees. To require identical hours would remove necessary flexibility and be unworkable. The Tribunal did not err on this point; ground 2 is dismissed. (7) Orders: the appeal is remitted to the Tribunal on the upheld grounds for determination of remedies and consequential matters.

Appellate history

  • Employment Appeal Tribunal: appeal heard before Choudhury J, HHJ Eady QC permission stage noted; this decision allows grounds 1 and 3 and dismisses ground 2 and remits issues on remedy to the Employment Tribunal (see Reasons).
  • Employment Tribunal (Leeds): first-instance decision by Employment Judge Jones with lay members dismissed claims on annual leave and rest-break pay but found other breaches (see Reasons, paras [42]-[45]; [35]-[37]).

Key cases cited

This feature is available to zoomLaw Pro members.

Cases citing this case

This feature is available to zoomLaw Pro members.