The extent of Agency Workers rights to Equal Treatment clarified by the Employment Appeal Tribunal

Under the Agency Workers Regulations 2010, following the completion of a 12-week qualifying period, agency workers are entitled to equal treatment with directly recruited employees in relation to "basic working and employment conditions" including pay, working time and holiday. In a very long-running tribunal case, the Employment Appeal Tribunal considered the extent of the right to equal treatment under the Regulations in respect of a number of aspects of agency workers’ employment. 

Background to the Appeal

The claimants in this case were employed by Angard, a company in the Royal Mail group.  They were supplied on a flexible basis to its sole client, Royal Mail  in order to assist Royal Mail with reacting to fluctuations in demand for postal workers from day to day. Royal Mail determined the pay and conditions of employment for agency workers who are employed by Angard. As part of a long-running dispute involving multiple claims against both companies, the claimants brought various claims under the Agency Workers’ Regulations (“AWR”).

Amongst other complaints, the claimants complained of breaches of Regulation 5 of the AWR, which gives agency workers the right to the same basic working and employment conditions as they would be entitled to as an employee of the hirer, and a breach of Regulation 13, which gives agency workers the right to be informed of any relevant vacant posts with the hirer.

An employment tribunal upheld five out of a total of twelve of their claims. Both parties appealed to the EAT.

The Employment Appeal Tribunal’s Decision

Shift Lengths

In relation to Regulation 5 of the AWR, the EAT held that there was no breach arising from the fact that the agency workers’ shift lengths were 12 minutes longer than they would have been if the claimants were recruited directly. The disparity arose because weekly hours for direct recruits were 39 hours, and agency workers were given shifts based on a 40-hour week. Agency workers were paid for the extra time that they worked. The EAT held that the AWR and the EU Temporary Agency Workers Directive that the AWR implements, do not entitle agency workers to the same number of contractual hours as a directly-recruited worker.  The reference to equal treatment in relation to “the duration of working time” has a more limited meaning: it means that if the hirer sets a maximum period when a comparable employee could be required to work, the hirer could not set a different maximum for agency workers.

Overtime, Breaks and Payslips

The EAT found that there was no breach of Regulation 5 of the AWR by giving direct recruits first refusal in relation to overtime opportunities, by providing agency workers with a less detailed breakdown of information on their payslips, or by only scheduling short breaks in advance for direct employees. The  right to equality of treatment in relation to basic working and employment conditions concerned with overtime did not extend to a right to equal treatment in relation to opportunities for overtime.  In relation to the payslip information, the right, under regulation 5(1) of the AWR, to equal treatment for basic working and employment conditions relating to pay did not extend to a right to the same pay information on pay slips.  Similarly, in relation to the breaks, the timing of breaks was not within the scope of regulation 5(1) of the AWR because it did not concern “the duration of working time”. In any event, the ET was entitled to find that direct employees had no contractual right to have their shorter breaks scheduled in advance.

Pay rises

After identifying the potential for a breach, the EAT remitted the question of whether a pay rise, implemented for agency workers six months after it had been implemented for comparable direct employees, was a breach of Regulation 5.

Training

Additionally, the EAT held that the respondents were not in breach of Regulation 5 by providing their direct recruits with a 30-minute weekly training session, while agency workers were expected to continue working. There was nothing in the wording of either the Directive or the AWR to suggest that there is a requirement for equality of treatment in relation to the content of working time.

Internal vacancies

In relation to Regulation 13, the EAT held that the right to be informed by the hirer of vacancies does not mean that agency workers are entitled to apply for and be considered for internal vacancies on the same terms as directly-recruited employees. In this case, the agency workers could only apply for vacancies when they were advertised externally, when they would be in competition with external applications. They were ineligible for internal vacancies. The EAT held that under Regulation 13 of the AWR, the right is to be notified of vacancies and to be given the same level of information as direct recruits, not a right to be eligible to apply.