02 Mar 2021
The Employment Appeal Tribunal (EAT) has provided further clarity on agency worker rights under the Agency Worker Regulations 2010.
The Agency Worker Regulations adapt into UK law the Temporary Agency Workers Directive from the EU. It’s designed to ensure fair treatment of agency workers from both the agency and the end user.
Regulation 5 dictates that agency workers should be afforded the same rights as employees directly hired by the end user after their placement has lasted for at least 12 weeks. This covers a number of elements of their role and the relationship between both parties. Both the end user, and the agency, are liable for breaches of Regulation 5 under Regulation 14.
Regulation 13 also outlines that agency workers have the right to be informed of internal vacancies with the end-user.
Agency workers & employee rights
This case concerned an organisation that supplied agency workers to the Royal Mail. There have been several claims concerning this specific relationship. The claims were based on whether individuals assigned to the Royal Mail could be considered agency workers. Previous rulings confirmed that they were agency workers. Following this, two claimants now proceeded to bring claims that the Agency Worker Regulations had been breached.
These claims included that Regulation 13 had been breached. This was because they had been informed that they were ineligible to apply for certain internal vacancies, unless they were advertised externally. They also stated that there had been a breach of Regulation 5 in several ways, including:
- Agency workers having to work longer shifts than directly hired employees. This was due to a negotiation with a union concerning internal staff
- Agency workers being only being offered overtime if directly hired employees did not volunteer for it
- Agency workers having to wait for a pay rise for a longer period than directly hired staff
- Agency workers not being permitted to take part in a training session that directly hired staff did. Instead, they had to carry out working during this time.
In the first instance, the tribunal upheld the Regulation 13 claim. They also upheld the Regulation 5 claim in relation to the shift lengths issue. However, they dismissed all other claims.
The claimant was granted permission to appeal on a number of grounds. These included the late pay increase, exclusion from training sessions, and the overtime issue. The respondents counter appealed. They argued that the tribunal had misinterpreted the wording of Regulations 13 and 5.
The EAT allowed the claimant’s appeal in relation to the late payments. However, they dismissed all their other grounds. They also allowed the respondent’s appeal on both grounds.
The vacancy issue
The EAT held that agency workers do have the right to be informed about a vacancy with the end-user. However, they don’t have the right to be entitled to apply for them. The fundamental purpose of this right is for the workers to receive the same information as comparable direct recruits. This puts them at an advantage to an external candidate. This information was therefore valuable even if the end-user went on to refuse them permission to apply.
Shift length and overtime issues
The EAT held that there was no requirement in the Regulations that agency worker shifts must be the same length as end-user staff. The only exception to this was if a maximum had been set for all staff. Such a scenario would, in their view, be unworkable. This is because one of the main purposes of having agency worker staff is the flexibility. In the same vein, there was no automatic equal right to be granted the same overtime options as end-user staff.
The pay rise issue
The EAT held that the delay in implementing the pay rise could amount to a potential breach of the Regulations. The right to the same basic employment conditions did also include the timing of that pay.
The tribunal had erred as they had failed to consider this. There was also the possibility that there was an implied term in their employment contracts. This term meant that, for direct recruits, a pay rise had to be implemented within a reasonable time. This term had been breached. As a result, this issue was remitted back to a new ET.
The training session issue
The EAT held there had been no breach in relation to this issue. This was because the regulations do not instruct that agency workers need to be given the same work duties as direct recruits. This means it was acceptable for direct recruits to have a weekly training session that agency workers were not included in.
Note for employers
This case continues to cover a number of issues concerning interpretation of the 2010 Regulations. The EAT has provided further clarity on this area here. What is of particular interest is their ruling on the advertisement of vacancies for agency workers. Crucially, they only need to be told about them but do not necessarily have the automatic right to apply. That said, there may be further discussions on this issue and organisations should continue to follow the developments of this case closely.
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