Agency workers not entitled to the same number of contractual hours as direct recruits

Once an agency worker has worked for a hirer for 12 weeks, they are entitled to the same basic working and employment conditions as the hirer’s own employees. However, the Court of Appeal has ruled this does not include a right to the same number of contractual hours (Kocur v Angard Staffing Solutions Limited).

What rights do Agency workers have?

Agency workers have various rights under the Agency Worker Regulations 2010. After 12 weeks working for a hirer, they are entitled to the ‘same basic working and employment conditions’ as direct recruits. This includes terms such as pay, annual leave, rest periods and rest breaks.  

It also includes terms relating to the duration of working time. The Court of Appeal considered whether terms relating to the duration of working time include a right to the same contractual hours as a direct recruit.    

What claims did Mr Kocur make for contractual hours?

Mr Kocur was an agency worker at the Royal Mail. He brought an employment tribunal claim and argued he was entitled to the same annual leave, paid rest breaks and amount of work as direct recruits.

The employment tribunal disagreed. It ruled that his less generous rest breaks and annual leave entitlement were made up for by his enhanced hourly rate of pay. It also rejected his argument that he was entitled to the same working hours as direct recruits. 

Mr Kocur appealed to the Employment Appeal Tribunal (EAT). It ruled he was entitled to the same annual leave and rest breaks as direct recruits. The Agency Worker Regulations require a term by term comparison of the basic conditions. An employer cannot compensate an agency worker for worse terms by paying an enhanced hourly rate of pay.

However, the EAT ruled that Mr Kocur was not entitled to the same contractual working hours as direct recruits. It considered that terms relating to the ‘duration of working hours’ are those which set a limit on the number of hours. Agency workers are entitled to benefit from the same limit but are not entitled to work the same number of hours as a direct recruit. 

Mr Kocur appealed to the Court of Appeal. 

How did the Court of Appeal rule?

The Court of Appeal rejected Mr Kocur’s appeal. It agreed with the EAT’s ruling. Giving agency workers a right to the same contractual hours as a direct recruit would defeat the purpose of using agency workers– to allow flexibility in the workforce.  

What are the implications of this case for employers and employees?

The decision will be welcomed by employers who use agency workers because of the flexibility they offer. Many industries have fluctuating workloads, for example due to seasonal variations. Agency workers provide the extra resources peak periods of work demand. If agency workers were entitled to the same contractual hours as direct recruits, this key advantage would be removed. 

Will there be further reforms?

The 2017 Taylor Review and the Government’s Good Work Plan in December 2018 both considered agency workers. The Government will be implementing further changes from 6 April 2020, including:

• Giving agency workers greater transparency by requiring employment businesses to provide them with a Key Information Document before agreeing terms; and
• Abolishing the Swedish Derogation (which provides a limited exception to the right to equivalent pay after 12 weeks).

For further information on agency workers and the Good Work Plan reforms, click here to read Declan Bradley’s article for Employment Law Journal.