This case follows on from a previous EAT decision in which it was found that the claimant met the criteria under Regulation 3 of the Agency Workers Regulations 2010.  The issues then arising related to the application of the rules relating to agency workers.

By way of background, Angard was an employment agency which was wholly owned by Royal Mail.  It provides agency workers for Royal Mail.  The claimants raised issues stating that there was a breach of Regulation 5 of the Agency Worker Regulations which allows for agency workers to be entitled to the same working and employment conditions as those who are working in the same role for the hirer directly.  There was also a complaint in relation Regulation 13 relating to the right to be informed by the hirer of any relevant vacant posts.

In terms of Regulation 13, the EAT outlined that it does not extend to give the same rights to agency workers as other workers to apply for and be considered for internal vacancies.   The right is curtailed insofar as the agency workers should be notified of the vacancies on the same basis as those working for the hirer. Accordingly, Regulation 13 can be seen as ensuring that the same information is available rather than the process to be engaged upon when comparing applications between agency workers and those who were directly hired.

In terms of Regulation 5, the issue outlined by the claimants was that their shifts were regularly 12 minutes longer than those who were directly hired.  Direct recruits had a 39-hour working week whereas the agency workers had their shifts based upon a 40-hour working week.  The agency workers were paid for this additional time, but the issues was whether these were different basic working and employment conditions. The EAT held that the 2010 Regulations do not entitle agency workers to the same number of contractual hours.  It would, instead, only relate to situations about duration of working time such as a maximum period that an agency or directly hired individual could work.

A further issue related to Regulation 5 was the fact that a pay rise was given six months after the direct employees had received it.   The ET initially held that there had been no breach because they eventually got to the same pay.   However, the EAT held that it should relate to the implied terms between direct hires and agency workers.   Accordingly, the appeal was allowed with the issue remitted back to the ET for decision.

The final two issues relating to Regulation 5 concerned the itemisation of pay slips where direct hires were given more information and a half-hour allowance given to direct hires for Listening and Learning training sessions.  The EAT held that there was no requirement within the Regulations relating to the same information on payslips.  Furthermore, when it came to the training sessions, Regulation 5 relates to the duration of working time rather than the content of the working time.   Accordingly, there was no breach of the regulations on both of these grounds.

Practical Lessons

This case demonstrates the inner workings of the Agency Workers Regulations 2010.   Whilst they are designed to give a more level playing field for agency workers, they have been restrictively interpreted.  This is clear when working time relates to its duration rather than its content.  This means that there is a limited scope upon which agency workers can rely upon the 2010 Regulations.
https://www.gov.uk/employment-appeal-tribunal-decisions/1-angard-staffing-solutions-ltd-2-royal-mail-group-ltd-v-mr-d-kocur-and-others-ukeat-0050-20-joj