Can an agency worker supplied on a long term basis to a single client still qualify for protection under the Agency Worker Regulations 2010?
In the case of Angard Staffing Limited v Kocur UKEAT/0050/20, the Employment Appeal Tribunal (EAT) recently considered whether an agency worker supplied on a long term basis to the agency's sole client was supplied to work 'temporarily' for that client, therefore meeting the definition of 'agency worker' under the Agency Workers Regulations 2010 (AWR).
The AWR give effect to the Temporary Agency Workers Directive 2008/104 EC, and outline the rights of temporary agency workers who are employed by the temporary work agency under a contract of employment. It also outlines the rights of other worker's contract to enjoy basic working and employment conditions at least equal to those engaged by the end user/ hirers own employees, particularly with regard to pay.
Is the Assignment Temporary?
The issue in this case was whether Mr Kocur was temporarily supplied to the Royal Mail as the end user / hirer and thus had the status of an 'agency worker' within the meaning of regulation 3(1) of the AWR. This would entitle him to basic working and employment conditions enjoyed by permanent Royal Mail staff.
In reaching its decision on the nature of the assignment, the Employment Tribunal looked at and held that each assignment had been defined by reference to a particular period and specific shifts. This was notwithstanding that Mr Kocur's contract with Angard Staffing Limited was open ended and he was only supplied to Royal Mail as the agency's sole client. In fact, Mr Kocur had been regularly and repeatedly supplied to the Royal Mail for 4 years.
The case emphasizes the need when examining whether an individual is an agency worker to focus on the nature of the supply of the agency worker relating to each assignment by the agency to the end user / hirer, as opposed to the nature of the agency worker's contract with the agency.
In particular, where workers are engaged on a zero hours contract (where work patterns are likely to be uncertain), or supplied to cover staff absences or upsurges in work, the nature of the assignment is likely to be of a temporary nature . This is because workers are likely to be notified periodically (ie weekly) about the availability of shifts, and each period will amount to a temporary assignment.
The decision will be of comfort to agency workers who are supplied on a long term basis to a single client or end user. A previous case of Moran and others v Ideal Cleaning Services Limited UKEAT 0274/13 had introduced uncertainty on an agency workers' rights where assignments were for indefinite periods and open ended rather than temporary by nature.
For specialist legal advice on the rights of long term agency workers, please contact Mike Delaney in our Employment team on 07909 912 564