Agency workers
Cases on appeal provides news on key case law developments that are expected.
In Angard Staffing Solutions Ltd and another v Kocur and another; Kocur and another v Angard Staffing Solutions Ltd and another, the Employment Appeal Tribunal made a number of determinations about agency worker rights, including that agency workers are not entitled to apply for, or to be considered for vacancies on the same terms as directly recruited employees.
In Kocur and others v Angard Staffing Solutions Ltd and another, the Employment Appeal Tribunal held that a worker supplied by an agency to work temporarily for Royal Mail was an agency worker, despite the fact that he was supplied exclusively to Royal Mail on a regular basis over four years.
In Kocur v Angard Staffing Solutions Ltd and another, the Court of Appeal held that agency workers' entitlement to the "same basic working and employment conditions" as permanent staff after 12 weeks does not extend to being given the same number of hours' work.
In Kocur v Angard Staffing Solutions Ltd and another, the Employment Appeal Tribunal (EAT) held that a failure to provide an agency worker with the same annual leave entitlement and paid rest breaks as those enjoyed by permanent employees could not be offset by a higher rate of pay.
The Employment Appeal Tribunal (EAT) has confirmed the correct approach that tribunals should follow when calculating compensation for an infringement of reg.5(1) of the Agency Workers Regulations 2010.
In McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742 EAT, the EAT held that, in order for a claimant to be a "worker" within the meaning of the extended "whistleblower" definition in s.43K of the Employment Rights Act 1996, all that is required is that the end user substantially determined the terms under which the claimant carried out his or her work. It is not necessary to show that the end user determined those terms to any greater or lesser degree than the agency, of whom the claimant might also be an employee or worker.
The Employment Appeal Tribunal has held that there is nothing in agency workers laws to prevent employers from choosing permanent members of staff over agency workers for job vacancies.
The employment tribunal held in this case that the hirer, and not the temporary worker agency, was liable to pay compensation to the agency worker for failure to pay her at the rate she would have been paid had she been directly recruited by the hirer as an employee.
The Employment Appeal Tribunal has stressed that workers are afforded protection under the Agency Workers Regulations 2010 (SI 2010/93) only if they are supplied by a temporary work agency to work "temporarily" for the end user.
Employment law cases: HR and legal information and guidance relating to agency workers.