Angard Staffing Solutions Ltd v Kocur (Kocur v Angard Staffing Solutions Ltd)

The Agency Workers Regulations 2010 confer a right to be informed of relevant vacancies, with the same information as directly employed workers. They do not generally confer a right to apply for, or be considered for, vacancies on the same terms.

Equal treatment concerning the duration of working time does not require identical contractual hours or shift lengths. It prevents a hirer from imposing a greater maximum working period on agency workers. Pay includes the timing of payment, where a contractual or implied term ordinarily applies to direct employees. The Regulations do not require identical work content, overtime opportunities, payslip detail or break scheduling.

Mr Kocur and Ms Roberts were employed by Angard Staffing Solutions Ltd and supplied to Royal Mail Group Ltd as agency workers at Leeds Mail Centre. They brought claims under the Agency Workers Regulations 2010 concerning vacancies, working time, pay, training, overtime, payslips and breaks. Angard also appealed findings concerning statements of employment particulars.

Both sides appealed findings of the Employment Tribunal entered on 29 November 2018. The respondents challenged findings on internal vacancies, shift length and section 1 statements. The claimants challenged findings on delayed pay increases, training, overtime, payslips and break scheduling.

1. Internal vacancies. The respondents’ appeal was allowed. Regulation 13(1) of the Agency Workers Regulations 2010, implementing Article 6.1 of the Directive, requires agency workers to be informed of relevant vacancies and given the same level of information as internal workers. It does not require the hirer to allow agency workers to apply for, or be considered for, internal vacancies on the same terms. The EAT followed Coles v Ministry of Defence, treating its reasoning as part of that decision’s ratio.

2. Shift length. The respondents’ appeal was allowed. The reference to the duration of working time does not entitle agency workers to the same number of contractual hours as a comparator or to identical shift lengths. It requires parity where the hirer has fixed a maximum period for which comparable employees may be required to work. The claimants’ longer shifts therefore did not breach the Regulations.

3. Section 1 statements. The respondents’ appeal was dismissed as premature because the Tribunal had withdrawn its provisional order and had not finally determined the jurisdictional issue. The EAT expressed only a provisional view that the remedies under regulation 18 might not include retrospective amendment of a section 1 statement.

4. Delayed pay increase. The claimants’ appeal was allowed. A term concerning the timing of payment is capable of being a term relating to pay. It was arguable that an implied term ordinarily included in direct employees’ contracts required implementation of the agreed pay rise within a reasonable period. The issue was remitted to a differently constituted Employment Tribunal.

5. Other claims. The claims concerning weekly training sessions, overtime opportunities, payslip detail and advance scheduling of breaks were dismissed. The Regulations do not require identical work content, equal access to overtime opportunities, identical payslip information or contractual scheduling of breaks where those matters do not form part of the relevant contractual conditions.

• Employment Appeal Tribunal: The respondents’ appeals on internal vacancies and shift length were allowed and the claims were dismissed. Their appeal concerning section 1 statements was dismissed as premature. The claimants’ appeal concerning delayed implementation of the pay rise was allowed and remitted to a differently constituted Employment Tribunal. Their remaining grounds were dismissed.
• Employment Tribunal: Judgment entered and sent to the parties on 29 November 2018. The Tribunal upheld some complaints under the Agency Workers Regulations 2010 and rejected others.