The Court of Appeal has held that the rights of an agency worker under the Agency Workers Regulations 2010 (AWR) do not extend to guaranteeing an agency worker the same number of hours of work as a permanent employee.
- The law
The Agency Workers Regulations 2010 (AWR) confers certain rights on agency workers to be treated equally to a directly-recruited employee. This includes:
- Entitlement to the same basic working and employment terms and conditions as if they were recruited by the hirer directly (Regulation 5(1).
- Regulation 6 confirms that these “terms and conditions” include pay, the duration of working time, night work, rest periods, rest breaks and annual leave.
An employment agency supplied temporary agency workers to the Respondent to work alongside its permanent employees. The Claimant worked as an agency worker for the Respondent for over 12 weeks, triggering his AWR entitlement to the same basic working and employment terms and conditions. However, there remained differences between his conditions and those of the permanent employees. These included distinctions in rest breaks and annual leave, as well as not being given the same volume of work.
The Claimant brought an Employment Tribunal claim against the employer company (the Respondent) and the employment agency. The Tribunal dismissed his complaints, arguing that the less favourable annual leave and rest breaks entitlements were compensated for by enhanced hourly pay. In relation to the hours of work, the Tribunal argued that a situation where hirers did not have the flexibility to engage agency workers according to demand and with less work than their permanent staff would be unworkable and not what the AWR intended.
The Claimant appealed to the Employment Appeal Tribunal (EAT). The appeal was allowed in relation to the rest breaks and annual leave differences, as the EAT held the AWR required a “term by term” approach to workers conditions and differences in certain employment terms cannot be compensated by enhanced pay. The appeal on the amount of work was dismissed. The EAT held that the AWR seeks a balance between flexibility and security and intended that an agency worker’s working time should not exceed an employee’s normal working time, but precise equivalence between their respective hours is not required.
The Claimant appealed to the Court of Appeal on the working hours argument alone.
The Court of Appeal dismissed this appeal. The Court of Appeal held that the purpose of AWR was to ensure the equal treatment of agency workers compared to directly recruited employees while at work, and in terms of rights arising while at work. An agency worker’s right to equal treatment in relation to the ‘duration of working time’ under the AWR is intended to set a maximum duration of working time, but does not regulate the amount, or hours, of work which agency workers were entitled to be given, nor does it extend to an entitlement to be offered the same number of hours of work.
A provision with the effect sought by the Claimant, requiring the same contractual hours of work for agency workers, would be contrary to the whole purpose of making use of agency workers, which is to afford the hirer flexibility in the size of workforce available to it from time to time.
- Implication for Employers
This judgement confirms that there remains no requirement to ensure agency workers work exactly the same number of hours of work as a permanent employee. However, employers should bear in mind the rights conferred by AWR on agency workers, in respect of maximum duration of working time and the entitlement to the same working rights and conditions as employees.