The Employment Appeal Tribunal has held that a failure to provide agency workers with the same annual leave entitlement and paid rest breaks as those enjoyed by the hirer’s permanent employees could not be compensated for by an enhanced hourly rate of pay.
The employment agency, in this case, supplied temporary agency workers, where they worked alongside the hirer’s permanent employees. One individual had worked for the hirer for over 12 weeks, triggering his entitlement to the same basic working and employment conditions as he would have received had he been recruited directly by the hirer.
Employees and agency workers had a one-hour rest break each day. Employees were paid for the full hour, but agency workers were only paid for 30 minutes of it. In addition, employees received 30.5 days’ annual leave, but agency workers only received 28 days. However, the agency workers received an enhanced hourly rate of pay.
The individual asserted that he should be entitled to the same weekly working hours, annual leave and paid rest breaks as the hirer’s employees. The tribunal dismissed those claims, and said that less generous rest break and annual leave entitlements were compensated for by the enhanced hourly pay.
Agency workers entitled to same terms
Allowing a subsequent appeal, in relation to annual leave and rest breaks, but dismissing the appeal in relation to working hours, the Employment Appeal Tribunal said that the basic working and employment conditions of agency workers should be at least those that would apply if they had been recruited directly. That meant that the entitlement of agency worker was subject to a minimum level but there was no ceiling on entitlements.
The Employment Appeal Tribunal said that there was clearly a disparity as to the amount of leave entitlement for employees and agency workers. A breach of their entitlement, it said, could not be avoided by the fact that the agency worker could nominally take 2.5 days’ leave during any period when he was not working for the hirer. It went on to say that the failure to provide the claimant with 2.5 days’ additional leave could not be ‘compensated for’ by an enhanced hourly rate.
In relation to rest breaks there was also a breach as agency workers and employees were paid differently for the rest break. The fact that he was paid more overall for the whole shift did not change the fact that he was paid significantly less for the rest break. It said that payment for the whole rest break could be rolled up into hourly pay but only if it was done in a transparent way, so that payment amounted to at least the hourly rate of the employees for the rest break.
Upholding the tribunal’s decision on working hours it said that the requirement that there be equivalence in respect of the duration of working time meant that the agency worker’s working time should not exceed that which would normally apply to employees. The requirement, it said, was not for precise equivalence between the agency workers’ hours and those of the hirer’s employees as that would remove the flexibility inherent in the agency/hirer relationship. It would also be unworkable in that the agency worker may be able to choose at will from any number of comparators with different working hours.
Case reference: Kocur v Angard Staffing Solutions Limited