Angard Staffing Solutions Ltd v Kocur

For the purposes of Regulation 3(1)(a) of the Agency Workers Regulations 2010, the question is whether the worker is supplied on each occasion to work temporarily for the hirer. Temporary work means work that is not permanent or indefinite. It includes work which ends after a fixed period, on completing a task, or on another defined event.

The overarching contract between the agency and worker is relevant evidence, but it is not determinative. The tribunal must decide the factual basis on which each supply is actually made. Repeated supplies to the same hirer over years may remain temporary where every engagement is for a finite shift or defined period. Exclusive supply to one hirer does not prevent agency-worker status.

Mr Kocur was employed by Angard on an open-ended, zero-hours contract and was supplied exclusively to Royal Mail. Between 2015 and 2019 he regularly worked shifts at a Royal Mail mail centre. Each engagement was ordinarily offered and accepted separately and was for a specified shift or other finite period.

At a preliminary hearing, the Employment Tribunal held that he was an agency worker under Regulation 3 of the Agency Workers Regulations 2010, and that Angard was a temporary work agency under Regulation 4. Angard and Royal Mail appealed, contending that the tribunal had wrongly treated individual assignments as temporary despite the enduring overall relationship. Mr Kocur cross-appealed, contending that the respondents should have been barred by the rule in Henderson v Henderson from disputing his status.

1. Appeal dismissed. The Employment Tribunal correctly held that Mr Kocur was supplied to work temporarily and was therefore an agency worker under Regulation 3 of the Agency Workers Regulations 2010.

2. Regulation 3(1)(a) directs attention to the basis on which the agency actually places or sends the worker to work for the hirer on each specific occasion. The tribunal must determine whether that supply is indefinite or whether it ends after a fixed period, completion of a task, or another specified event. The latter is temporary work in the sense explained in Moran.

3. The general contract between agency and worker is part of the evidential and factual matrix. It may show what type of supplies the parties contemplated, but it does not itself answer whether a particular supply is temporary. The ultimate question is what happened in fact. A framework contract may permit either temporary or permanent assignments, and the parties' subsequent arrangements may differ from what was initially contemplated.

4. The tribunal was entitled to find that every engagement was for a finite shift or defined period and provided cover for additional demand or absence. The open-ended employment contract, the frequency of assignments over four years, and exclusive supply to Royal Mail did not alter the temporary character of each supply. The Regulation 2 definition of assignment was consistent with, rather than irrelevant to, that analysis. Nor did the Regulations require an agency to supply workers to more than one hirer.

5. Cross-appeal dismissed. The Henderson v Henderson abuse point had not been raised as a live issue before the tribunal. There is no special duty on an Employment Tribunal to raise that point proactively whenever prior litigation might provide a basis for it. Whether a matter that could have been raised earlier amounts to abuse requires an evaluative assessment of all the circumstances and may require further evidence.

• Employment Appeal Tribunal: dismissed Angard and Royal Mail's appeal and Mr Kocur's cross-appeal.
• Employment Tribunal: at a preliminary hearing held that Mr Kocur was an agency worker under Regulation 3, and Angard a temporary work agency under Regulation 4, of the Agency Workers Regulations 2010.