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In brief

The EAT has ruled on a number of aspects of agency worker rights and held that the right to be informed about vacancies in the host organization is solely a right to information; it does not create a right to be allowed to apply, or be considered, for a vacancy.


Background

The Agency Workers Regulations 2010 (AWR) gives agency workers the right, from day one, to be informed by the hirer about internal vacancies. The AWR also requires agency workers to be given the same basic working and employment conditions that they would have been entitled to had they been directly recruited. This right only applies after 12 weeks of work with the hirer.

Facts

Angard Staffing Solutions is wholly owned by Royal Mail, and provides agency workers exclusively to it. Mr Kocur and another claimant have brought a number of claims against Angard and Royal Mail about whether Angard-supplied workers have the protection of the AWR (yes) and the scope of those rights. This latest case concerned the right to vacancy information, as well as various pay and work issues.

Vacancy information

The EAT decided that this is solely a right to information. It rejected Mr Kocur’s case that it must also be a right to be allowed to apply for a vacancy. The EAT acknowledged that a right to information only was blunted if a hirer could go on to refuse to allow an agency worker to apply. However, the EAT considered that a right to information was valuable nonetheless. The right is to receive the same information as comparable direct-recruits, which potentially puts the agency worker at a distinct advantage to an external candidate, who might not even hear of the vacancy, or not receive the same level of information.

Shift length, breaks and overtime

The right to the same basic working and employment conditions includes aspects of working time. However, the EAT held that this right does not require the same shift lengths or same pre-scheduling of breaks for agency workers as compared to direct-recruits. In addition, there is no right to equal opportunity to undertake overtime.

Pay

Permanent members of staff had received a pay rise. Although agency workers eventually received it too, there was a delay. The EAT held that this was a potential breach of the AWR and the right to the same basic working and employment conditions in respect of pay includes the timing of that pay.

However, the AWR’s provisions on pay do not extend to the content of pay slips. Therefore, there was no requirement for an agency worker’s pay slip to contain the same detail as a permanent member of staff.

Work content

The AWR does not require agency workers to be given the same work duties as a comparable direct-recruit. Accordingly, there was no breach arising from the fact that direct-recruits were required to do a weekly half-hour of “listening and learning” training sessions whilst agency workers had to carry on working.

Angard Staffing Solutions Ltd and another v Kocur and another, EAT

Author

James Brown is a Knowledge Lawyer in Baker McKenzie's London office.

Author

Rachel Farr is a Knowledge Lawyer in Baker McKenzie's London office.

Author

Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.