The claimant was an agency worker employed by Angard Staffing, whose sole client was the Royal Mail. The claimant commenced this work in January 2015 and only worked for the Royal Mail throughout his employment. The claimant brought claims on the basis of the Agency Workers Regulations 2010 and the issue to be dealt with by the court was whether he met the definition in Regulation 3.

Regulation 3 states: In these Regulations “agency worker” means an individual who -

(a) is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and

(b) has a contract with the temporary work agency which is—

(i) a contract of employment with the agency, or

(ii) any other contract to perform work and services personally for the agency.

The issue was whether the claimant was supplied by the first respondent to work temporarily for the Royal Mail or whether it was not to be deemed agency work, considering it was with the one company (that being Royal Mail).  The claimant’s contract stated that he was a ‘flexible resourcing employee’ and that whilst he would report to and be managed by Angard, the day-to-day matters would be dealt with by Royal Mail. The nature of the engagements undertaken by the claimant changed week on week, working on average 2 shifts a week at 11 hours per week.   There were other occasions where longer periods of work were undertaken at busy times such as Christmas.

The Tribunal found that the claimant satisfied the definition of an agency worker.  The supply was deemed to be temporary and the case of Moran v Ideal Cleaning Services was distinguished.   In Moran there was no temporary supply as the workers were assigned to one client permanently. Angard sought to state that the claimant was supplied to the Royal Mail indefinitely as it was the only ‘client’ yet this was rejected as the services to the Royal Mail were only temporary, which was the pertinent question.   This was exemplified by the fact that the claimant’s engagements with the Royal Mail all had express end dates.

Angard appealed the decision.  The EAT stated that the contract between the worker and the agency will undoubtedly be a factor in considering the legal relationship but it is not necessarily determinative.

The actual question was the nature of the supply of the worker and whether it created and permanency. Accordingly, the EAT upheld the decision of the Tribunal, citing that the Regulation 3 of the Agency Workers Regulations 2010 applied in examining the contract between the claimant and Angard as well as what had happened in practice.

Practical Lessons

This case demonstrates the way in which the Tribunal will examining the definition that is given to an agency worker under the 2010 Regulations (the equivalent in NI are the Agency Workers Regulations (Northern Ireland) 2011).  The need for ‘temporary’ work is what has to be determined.  This is to be done by examining the supply of work that is given to the worker rather than the agreement that is made between the worker and the agency.   Whilst the agreement does have to be considered, the temporary nature of any supply will be through the work allocated and the end-dates given to the engagements was key in outlining that the Regulations applied.
https://assets.publishing.service.gov.uk/media/5f083a73e90e0712d0206ec7/1__Angard_Staffing_Solutions_Ltd_2__Royal_Mail_Group_Ltd_v_Mr_D_Kocur_and_Others_UKEAT_0050_20_JOJ.pdf