Agency Workers & Regulations

September 25, 2019, By

Angard Staffing Solutions Ltd was an employment agency supplying temporary workers to RMG Ltd where they worked alongside their permanent employees. K had been placed at RMG for over 12 weeks and therefore triggered his entitlement under Regulation 5 of the Agency Workers Regulations (“AWR”) to the same basic working and employment conditions as permanent employees however there were still differences between his terms and those of the employees, in particular, entitlement to the same number of hours of work and the same annual leave and rest break entitlement. K brought an employment tribunal claim against ASS and RMG. The tribunal did not uphold K’s complaint on the basis that agency workers were compensated for less generous rest breaks and annual leave entitlements as they were in receipt of an enhanced hourly rate of pay. In respect of working hours, the tribunal noted that the demand for agency workers fluctuates and that it was not the intention of the AWR or EU Temporary Agency Workers Directive (“the Directors”) to restrict a hirers’ ability to be flexible with agency workers. In any event, the permanent employees at RMG did not all work the same number of hours in a week therefore it was impossible to identify a comparator.

The EAT allowed K’s appeal in respect of entitlement to annual leave and rest breaks holding that an enhanced rate of pay could not compensate for the failure to provide an agency worker with parity to the permanent employees in this respect. However, it dismissed the appeal on working hours, agreeing with the employment tribunal that ‘duration of working time’ referred to in Regulation 6(1)(b) does not mean the number of hours an agency worker is entitled to and exact equivalence is not required. K appealed the point in relation to parity of working hours to the Court of Appeal.

The Court of Appeal dismissed the appeal. They held that the purpose of the AWR and the Directive is to ensure the equal treatment of agency workers and permanent employers whilst at work and in respect of their rights arising from the work but not the amount of work or number of hours the agency workers are entitled to.