Kocur v Angard Staffing Solutions Ltd

After the qualifying period, Regulation 5(1) of the Agency Workers Regulations 2010 requires comparison of each stipulated term and condition. “The same” means at least as favourable as the hirer’s terms. It sets a floor, not a ceiling.

An agency worker must receive the same amount of annual leave and at least the same pay for a rest break. A higher overall hourly rate cannot offset a shortfall in a distinct entitlement. Payment for an equivalent holiday entitlement may be made by a different mechanism, including a rolled-up payment, only if it is transparent and enables the worker readily to identify the sum attributable to leave.

“Duration of working time” does not guarantee the agency worker the same number of hours as a direct recruit. It protects against working longer hours than ordinarily apply, while preserving the flexibility inherent in agency work.

The claimant was supplied by an employment agency to work at Royal Mail’s Leeds mail centre. After completing the 12-week qualifying period, he was entitled to the protections in Regulation 5 of the Agency Workers Regulations 2010.

Directly recruited employees received 30.5 days’ annual leave and an hour’s paid rest break during an eight-hour shift. The claimant received 28 days’ leave and was paid for only 30 minutes of the hour-long break. The Employment Tribunal found that an enhanced hourly rate compensated for both differences and dismissed those complaints. It also rejected a complaint concerning working hours.

The claimant appealed. The central questions were whether higher overall pay could cure shortfalls in annual leave and paid rest breaks, and whether the Regulations entitled an agency worker to the same number of working hours as a direct recruit.

1. Appeal allowed in part. Grounds 1 and 3 succeeded. The Employment Tribunal erred in finding compliance with Regulation 5(1) in respect of annual leave and payment for rest breaks. Ground 2, concerning working hours, failed.

2. Regulation 5(1) had to be construed in light of Article 5 of the EU Temporary Agency Workers Directive (No. 2008/104). Although the Regulations use “the same”, the expression means terms and conditions at least as favourable as those of a direct recruit. The provision therefore creates a minimum level of protection and permits an agency worker to receive more favourable treatment in some respects.

3. The comparison is nevertheless term by term. The stipulated subjects in Regulation 6 are distinct. A shortfall in one, such as annual leave, cannot be offset by a more favourable entitlement in another, such as pay or rest periods.

4. The claimant was entitled to the additional 2.5 days’ leave given to direct recruits. A voluntary and unrecorded allocation of non-assignment days as leave did not confer an enforceable entitlement. It was neither transparent nor a real equivalent of contractual leave. Payment in lieu could not replace that leave where direct recruits could not be paid in lieu.

5. Where the amount of leave is identical, remuneration for that leave may be delivered by a different mechanism, including a rolled-up hourly payment. It must, however, be transparent and comprehensible, so that the worker can readily identify the amount paid for leave and verify that it is at least equivalent. The purported enhancement here did not meet that standard.

6. The claimant also received materially less pay for the hour-long rest break than a direct recruit. Higher pay across the shift could not cure that distinct shortfall. A transparent rolled-up payment could comply only if it provided at least the equivalent payment for the full break.

7. “Duration of working time” did not entitle the claimant to a guaranteed number of weekly hours matching a direct recruit. Read consistently with the Directive’s balance between protection and flexibility, it prevents agency workers being required to work longer hours than ordinarily apply to employees for the relevant assignment. It does not remove the hirer’s ability to engage agency labour according to demand.

• Employment Appeal Tribunal: allowed the appeal in part and held that Regulation 5(1) of the Agency Workers Regulations 2010 had been breached in relation to annual leave and paid rest breaks.
• Employment Tribunal, Leeds: found breaches in some unrelated respects, but dismissed the complaints concerning annual leave, paid rest breaks and working hours.