Where an agency worker and a direct recruit are paid the same but the agency worker works longer hours, is there a breach of the Agency Workers Regulations (NI) 2011?
The purpose of the Agency Workers Regulations (Northern Ireland) 2011 is to ensure equal treatment of agency workers and permanent workers. The Court of Appeal, in Kocur v Angard Staffing Ltd and another [2019], determined that the Agency Workers Regulation 2010 (the English equivalent to the Agency Workers Regulations (Northern Ireland) 2011) does not entitle agency workers to the same number of contractual hours as a directly recruited comparator.
However, under regulation 5(2) agency workers are entitled to the same "relevant terms and conditions" that are ordinarily included in the contracts of employees of the hirer and this includes pay. Therefore, if the agency worker is on a lower hourly rate of pay than the direct recruit, it seems that the Agency Workers Regulations (Northern Ireland) 2011 will have been breached. Nevertheless, an examination of the relevant contracts will be important in order to ascertain the precise conditions of pay in each case.
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