Twenty-Four Seven Recruitment Services Ltd v Afonso

Regulation 10(1)(a)(i) of the Agency Workers Regulations 2010 provides three potential methods of specifying remuneration, but the employer has no unrestricted choice between them. Where pay is calculated by reference to an hourly rate, the minimum hourly rate must be identified. A contractual reference to the then current National Minimum Wage sufficiently identifies that rate because the statutory rate is clear and readily ascertainable. The contract need not state the prevailing numerical figure.

By contrast, a term stating that expected work is any five days out of seven does not provide the expected hours of work required by regulation 10(1)(a)(iii). The agency worker should not be left to infer or calculate the expected hours from other contractual provisions.

One hundred and ninety-one agency workers brought claims concerning contracts with temporary work agencies and the pay-parity protection in regulation 5 of the Agency Workers Regulations 2010. The contracts sought to rely on the regulation 10 Swedish derogation, which exempts qualifying workers from pay parity between assignments.

The Employment Tribunal held that the contracts failed to comply with regulation 10(1)(a)(i), concerning remuneration, and regulation 10(1)(a)(iii), concerning expected hours of work during an assignment. The temporary work agencies appealed. The central issues were whether reference to the current National Minimum Wage was sufficient, and whether a term providing for work on any five days out of seven supplied the required information about expected hours.

1. Appeal dismissed. Regulation 10 requires compliance with all its relevant conditions. Although the Employment Tribunal was wrong on regulation 10(1)(a)(i), it was correct that regulation 10(1)(a)(iii) was not satisfied.
2. Regulation 10(1)(a)(i), like section 1(4)(a) of the Employment Rights Act 1996, contains three disjunctive descriptions: the minimum scale, the minimum rate, or the method of calculating remuneration. That does not give an employer a free choice which permits it to avoid information appropriate to the basis on which the worker is paid. Where remuneration is based on an hourly rate, the minimum rate must be identified; an hourly-rate calculation with no specified rate is insufficient.
3. The contractual reference to payment at a rate at least equivalent to the then current National Minimum Wage identified the statutory minimum hourly rate. The National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015 made the relevant rate clear and readily ascertainable. Regulation 10 did not require the numerical rate to be reproduced in the contract. The requirement was not one of certainty as to the precise amount of future pay.
4. The term providing for expected work on any five days out of seven did not state the expected number of hours, whether per week or for another relevant period. Other provisions specifying maximum or minimum hours did not permit a reliable calculation. The worker was not required to divine the intended figure from those provisions, and the assignment form using the same wording did not cure the defect.
5. The observations in Born London Ltd v Spire Production Services Ltd were made in a different context and did not assist on the method-of-calculation issue. The contracts therefore failed regulation 10(1)(a)(iii), with the result that the pay exemption under regulation 10 did not apply.

• Employment Tribunal, Bristol: held that the temporary work agencies’ contracts failed to comply with regulation 10(1)(a)(i) and (iii) of the Agency Workers Regulations 2010.
• Employment Appeal Tribunal: allowed the appeal in relation to regulation 10(1)(a)(i), but upheld the finding concerning regulation 10(1)(a)(iii). The appeal was dismissed because compliance with all relevant conditions was required.