HM Insights

Agency Workers – how far do their rights extend?

In the recent Court of Appeal case of Kocur v Angard Staffing Solutions Limited, the Court examined whether or not an agency worker was entitled - under the Agency Worker Regulations 2010 (the Regulations) - to be offered the same number of hours of work as those performed by a permanent employee.

Employment Status Working Practices Taylor Review Law Workers Agency Rights

The Facts

The Claimant was employed by Angard and worked at the Royal Mail's Leeds Mail Centre. Although there were variations in his pattern of working, typically he was allocated less than twenty hours work per week. He claimed that he was not treated equally with Royal Mail staff as the Royal Mail failed to make work available to him on the same basis as to its own staff.

The Claimant argued that if a standard direct recruit had a 39-hour working week, then he as an agency worker doing the same job following the 12-week qualifying period should be entitled to the same number of hours under the Regulations.

The Decision

In the Court of Appeal's decision, they acknowledged that the Regulations entitle an agency worker to the same basic conditions of work as an equivalent permanent employee. Therefore, it was for the Court of Appeal to determine whether or not the number of hours of work offered would be considered a basic working condition for the purposes of the Regulations.

The Court of Appeal held that the number of hours of work was not a basic working condition for the purposes of the Regulations. In making their decision the Court of Appeal considered the purpose of the Regulations, which sought to balance the interests of flexibility for employers against the protection of the interests of agency workers. They concluded that if agency workers were entitled to the same number of hours of work as direct hires, this would tip the balance too far in favour of the agency workers. The Regulations do not go so far as to regulate the amount of work that agency workers are entitled to be given.

They noted that employers often engage agency workers to address peaks and troughs in their demand for labour. Therefore if agency workers were entitled to the same hours as a direct-hire this would seriously impede their ability to address those peaks and troughs, which wasn't the purpose of the Regulations.

Get in touch

Whilst the most recent case law on employment status has concerned those in the gig economy, this case serves as a timely reminder that employers have to be aware of the rights of agency workers too.

The rights of agency workers can vary depending on their length of engagement and how they are engaged by the employment agency. Our employment team can help you navigate this tricky area of law. Please get in touch to discuss your requirements.

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