Agency workers regulations and a term-by-term approach


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The Employment Appeal Tribunal (EAT) has held in Koncur v Angard Staffing Ltd that an employer breached Regulation 5 of the Agency Workers Regulations 2010 (AWR) when it provided an agency worker with 28 days' holiday and half-hour rest breaks when permanent employees were entitled to 30.5 days' holiday and rest breaks of an hour.

Mr Koncur was employed by ASS Ltd, which supplied his services under an agency arrangements to RMG Ltd. After completing 12 weeks' service with RMG Ltd he became entitled to equal treatment with RMG Ltd's permanent employees under Regulation 5 AWR. He brought a tribunal claim arguing that Regulation 5 had been breached as he was only paid for half of his one hour break in each eight-hour night shift he carried out (direct recruits were paid for the entire hour), and that he was only entitled to 28 days' annual leave compared to the 30.5 days' annual leave enjoyed by direct recruits.

At first instance the tribunal rejected Mr Koncur's compliants on the basis that although there was a disparity as far as holiday entitlement was concerned this was compensated for by his higher hourly rate and that he received overall equivalent treatment. This higher rate was also held to cover the half-hour pay difference in relation to paid rest breaks. The EAT on appeal noted that Regulation 5 AWR provided for entitlement to "the same" basic working and employment conditions. It was clear that there was a breach of this Regulation in relation to leave which could not be compensated for by Mr Koncur's enhanced hourly rate.

The AWR require a term-by-term approach, and there was nothing in them which enabled the agency or hirer to offset a failure to confer a specific entitlement with a higher rate of pay. The failure to pay for a full hour rest break also constituted a breach of Regulation 5 and Mr Koncur's appeal was allowed.

Take note: Under the AWR a term-by-term approach is required when it comes to a comparison between agency workers with 12 or more weeks' service and their permanent counterparts. It will not be possible to offset a failure to match certain terms with enhanced terms elsewhere.          

This article is taken from HR Law – March 2018.

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