Loss for Royal Mail over worker status

• On 15 August 2019, the Employment Tribunal (ET) ruled that individuals supplied to Royal Mail by Angard Staffing Solutions (Angard) should be considered agency workers and an appeal against that decision was dismissed.
• The claimants had made multiple complaints, including the late payment of a Christmas bonus, disallowing the individuals from applying for internal job vacancies, issuing the individuals with a shift that was 12 minutes longer than Royal Mail employees and deducting work breaks from the claimants’ duration of working time.
• The ET unanimously ruled such infringements acted against the claimants’ employment rights as agency workers.
• Under the Agency Workers Regulations (AWR), agency workers have the right to no less favourable treatment compared to others who are employed by the organisation after completing a 12-week qualifying period. This covers the same right to basic employment and working conditions, such as annual leave, bonuses and pay. 
• Angard and Royal Mail appealed against this decision, arguing that Mr Kocur and the other claimants were not agency workers and therefore, were not entitled to the same rights as the employees of Royal Mail.
• The issue turned to whether the claimants were supplied by the agency to work temporarily for Royal Mail and the ET concluded they were supplied to work temporarily.
• The Employment Appeal Tribunal agreed with the ET’s decision that Mr Kocur is an “agency worker” within the meaning of Regulation 3 of the AWR and that Angard is a “temporary work agency” within Regulation 4.
• The claimants’ cross-appealed that the Tribunal erred by not proactively considering and determining whether it was an abuse of process for Royal Mail and Angard to have sought to dispute the claimants’ status as an agency worker at all.
• This was dismissed and, as the appeal had failed on its merits, the Tribunal’s decision in any event stood that the claimants were agency workers.

See the case here.

Aspire Comment

If you engage agency workers, to avoid falling foul of the AWR, we recommend that after approximately 10 weeks on assignment, you communicate with the end user to determine the basic working and employment conditions of an individual who is doing the same job and had been recruited by the end user. It is essential that agencies protect themselves from a possible employment tribunal claim and are clear about working conditions that their agency workers should begin to receive after 12 weeks.

Agencies should keep a record of all correspondence to demonstrate that a request for this information has been made to comply with AWR, to ensure you would have a defence against any challenge .

For guidance in relation to agency workers, the temporary labour supply chain or other employment tax matters, call us on 0121 445 6178 or email enquire@aspirepartnership.co.uk.

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