Written by Brabners LLP
Can a worker on a long term assignment benefit from the Agency Worker Regulations?
In the recent case of Angard Staffing Solutions Ltd v Kocur and others, the Employment Appeal Tribunal has ruled that workers who were supplied by Angard Staffing Solutions Ltd (“Angard“) to Royal Mail on a long-term basis were still supplied “temporarily”, meaning they fit the definition of agency workers and were therefore entitled to the rights under the Agency Worker Regulations 2010 (“AWR 2010″).
The case is important as it adds clarity to when a worker will be considered an ‘agency worker’. Read on to find out more…
What does the law say?
Under the AWR 2010, temporary workers who satisfy the definition of “agency worker” and who have completed 12 continuous weeks of work in the same role with the same client (hirer), have the right to the same basic working and employment conditions as a comparable permanent employee of the client (or a hypothetical comparator, if no actual comparator exists). Basic working and employment conditions include pay, annual leave, duration of working time and rest breaks. In addition, from day one of an assignment, agency workers have the right to access any collective facilities and amenities (such as a canteen) offered by the client to its own employees. They also have the right to be informed of any relevant vacancies in the client’s business during their assignment.
The AWR apply to workers with a contract of employment or any other contract to perform work and services personally (including a contract for services) who are supplied by an agency to work temporarily for and under the supervision of a client.
Mr Kocur, the Claimant, had been employed by Angard since January 2015 and had been supplied to work at Royal Mail (Angard’s only client) for all that time. He brought claims in the Employment Tribunal under the AWR 2010 against both Royal Mail and Angard. They both argued in response that he could not bring such claims as his assignment at Royal Mail did not fall within the scope of the AWR 2010, because the nature of his assignment was not ‘temporary’.
The Employment Tribunal considered previous cases on what ‘temporary’ meant in the context of the AWR 2010, including the case of Moran and others v Ideal Cleaning Services Ltd and another. In that case, the Tribunal decided that cleaners assigned to a client for periods between six and twenty five years were not ‘temporary’ and therefore not agency workers that benefited from the AWR 2010.
When deciding on the case of Mr Kocur, the Tribunal had to consider whether or not the supply of his services to Royal Mail was temporary. The Tribunal concluded that he was an agency worker within scope of the AWR 2020, on the basis that his work for Royal Mail was done under a series of assignments, each with a specified end date and with reference to certain shifts. There was no guarantee of work from one week to the next, and indeed there had been some periods when he had not been called upon to work for two or three weeks over the four years he was engaged by Angard.
Royal Mail and Angard appealed the decision, arguing that the Tribunal had not taken into account the open ended, indefinite and permanent relationship between the parties. The case went to the Employment Appeal Tribunal (“EAT“). On analysing the scenario, the EAT confirmed that the Tribunal had correctly found that Mr Kocur was an agency worker, as this reflected what happened in practice when he worked particular shifts for a defined period of time under each assignment. This was despite the open-ended contract which Mr Kocur had with Angard, the fact that he was only ever supplied to Royal Mail, and the fact that he had been repeatedly supplied in this way over a period of four years.
Why is this decision important?
The decision is significant for umbrella companies and employment businesses which supply workers on a long term basis to a particular client. Previously, the decision in the Moran case had cast doubt on whether such workers benefited from the AWR 2010. Whilst the Moran case is still valid, it should be treated with some caution and is fact-specific.
However, Mr Kocur’s case has clarified that when deciding whether the AWR 2010 apply, it is the nature of the supply of the worker to the client for each assignment which is relevant, rather than the nature of their contract with the umbrella or agency. Umbrella companies and employment businesses should begin by looking at the working pattern and assignments of each individual in practice. Flexible arrangements, where individuals have zero hour contracts and are mainly supplied sporadically to cover staff absences or deal with busy periods, are likely to fall under the AWR 2010.
However, even where individuals are supplied on a more consistent, long-term basis, umbrella companies and employment businesses should exercise extreme caution in assuming that the AWR 2010 do not apply. The financial and reputational risk of doing so could be significant.
Some practical considerations:
- Ensure that you have a system in place to request comparator data once an individual is approaching 12 weeks in the same role with the same client;
- If an assignment is expected to last for a fixed period of time, ensure that the anticipated end date is inserted into the assignment schedule (rather than leaving it open-ended).
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership