Kocur v Angard Staffing Solutions Ltd & Anor

Agency Workers Regulations 2010, regulation 6(1)(b), does not give a qualifying agency worker a right to receive the same contractual weekly hours as a directly recruited comparator. The expression duration of working time concerns the length of periods during which the worker is continuously working, such as a shift or working day. It may encompass a maximum weekly limit, but it does not create an entitlement to a specified minimum quantity of work.

This construction accords with the underlying balance between equal treatment while agency workers are at work and the flexibility inherent in temporary agency work.

The claimant was supplied by Angard Staffing Solutions Ltd to Royal Mail's Leeds Mail Centre on an as-required basis. After completing the qualifying period, he contended that the respondents were required to offer him the same contractual weekly hours as directly recruited Royal Mail employees performing the same work.

The Employment Tribunal dismissed that part of the claim. The Employment Appeal Tribunal dismissed the claimant's appeal on the weekly-hours issue, although it allowed a separate appeal concerning rest breaks. The claimant appealed to the Court of Appeal, which considered whether Agency Workers Regulations 2010, regulation 6(1)(b), made contractual weekly hours a relevant term or condition concerning the duration of working time.

1. Appeal dismissed unanimously. Regulation 6(1)(b) of the Agency Workers Regulations 2010 did not entitle the claimant to work the same contractual number of weekly hours as a directly recruited comparator.
2. The definition of working time in regulation 6(5), read into the expression duration of working time, directs attention to the duration of a period when the individual is working, at the employer's disposal and carrying out duties. In ordinary language, this means a continuous period of work, such as a shift or working day. A 39-hour week comprises discrete periods and is not itself such a period.
3. The structure of regulation 6(1) supported that conclusion. Its non-pay heads correspond with protections in the Working Time Regulations 1998, which regulate matters such as maximum periods of work, rest and leave. Even if regulation 6(1)(b) could extend to a maximum weekly working limit, it could not create a right to be offered a particular number of hours. The working-time legislation does not address such an entitlement.
4. The same result followed from the purpose of Directive 2008/104/EC and the Regulations. They secure equal treatment in basic conditions while agency workers are working, but do not regulate the amount of work to which an agency worker is entitled. The proposed construction would undermine the recognised flexibility of temporary agency work.
5. The Tribunal's description of the comparator mechanism in regulation 5(3) was not wholly accurate, since regulation 5(1) uses a hypothetical comparator and regulation 5(3) provides a deemed-compliance route. That point was immaterial. The Tribunal's comparator concern was not essential to the result, and the Court's construction independently disposed of the appeal.

• Court of Appeal (Civil Division). The claimant's appeal was dismissed: [2019] EWCA Civ 1185.
• Employment Appeal Tribunal. On 23 February 2018, the EAT allowed the claimant's appeal on rest breaks but dismissed it on the asserted right to equivalent contractual weekly hours.
• Employment Tribunal. By reasons sent on 16 September 2016, the Tribunal upheld the claim in part but dismissed the claims concerning rest breaks and entitlement to equivalent hours.