Increased rate cannot offset reduced employment conditions under the Agency Worker Regulations

Regulation 5 of The Agency Worker Regulations 2010 (AWR) states that after 12 weeks on assignment an agency worker is entitled to the same “basic working and employment conditions” as a “comparable employee” who is doing the same job but has been recruited directly by the end user. A recent case Kocur v Royal Mail posed the question of whether the lack of an entitlement could be compensated by an increase in other areas.

The claimant was entitled to 28 days leave and 30 minutes paid rest breaks, whereas employees were entitled to 30.5 days leave and one hour paid rest breaks. The agency paid the worker an increased rate and argued the benefits of the increased rate offset the lack of annual leave and rest breaks which was originally accepted by the Employment Tribunal.

However, the Employment Appeal Tribunal disagreed and interpreted Regulation 5 of the AWR as the agency worker is entitled to the same terms and conditions as employees on a term by term basis, instead of the overall package. Therefore, each “relevant terms and conditions” offered to employees should be offered to agency workers after 12 weeks.

Regulation 6 of the AWR sets out “relevant terms and conditions” includes; pay, the duration of working time, night work, rest periods, rest breaks and annual leave.

Please see the examples below to see examples of what is and isn’t acceptable based on this ruling (assuming the worker has carried out 12 weeks on assignment).

Example 1- Incorrect treatment as the lack of one term cannot be offset by the other.

Example 2- Correct treatment as the agency worker and the employee have the same terms.

Example 3- Correct treatment as the agency worker is entitled to at least the same terms as the employee.

Aspire Comment

If you engage agency workers, to avoid falling foul of the AWR, we recommend that after approximately 10 weeks on assignment, you contact the end user to determine whether the worker has a comparator and if so, what their basic terms and conditions are.

You should have a paper trail to demonstrate that this request has been made to comply with AWR, to ensure you would have a defence against any AWR challenge.