Kocur v. Angard Staffing Solutions Ltd & Anor (AGENCY WORKERS), Court of Appeal - United Kingdom Employment Appeal Tribunal, February 23, 2018,  UKEAT 0181_17_2302
|Resolution Date:||February 23, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Kocur v. Angard Staffing Solutions Ltd & Anor (AGENCY WORKERS)|
Appeal No. UKEAT/0181/17/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 6 February 2018
Judgment handed down on 23 February 2018
THE HONOURABLE MR JUSTICE CHOUDHURY
MR H SINGH
MR D G SMITH
MR D KOCUR APPELLANT
(1) ANGARD STAFFING SOLUTIONS LIMITED
(2) ROYAL MAIL GROUP LIMITED RESPONDENTS
Transcript of Proceedings
The Tribunal erred in finding that there had been compliance with Regulation 5(1) of the Agency Workers Regulations 2010 in circumstances where the agency worker was only entitled to 28 days' leave and 30 minutes paid rest breaks, whereas the hirer's employees were entitled to 30.5 days leave and one-hour paid rest breaks. These shortfalls in entitlement could not be compensated for by the payment of an enhanced hourly rate.
The Tribunal did not err, however, in finding that there was no requirement to provide an agency worker with precisely the same number of working hours as the hirer's employees. Such a requirement would deprive the relationship between hirer and agency/agency worker of the flexibility considered important by the Directive.
THE HONOURABLE MR JUSTICE CHOUDHURY
1. The Appellant (to whom we shall refer as the Claimant) worked for the First Respondent, which is an employment agency supplying temporary workers to the Second Respondent. Pursuant to Regulation 5 of the Agency Workers Regulations 2010 (``AWR''), the Claimant, as an agency worker, was entitled to ``the same basic working and employment conditions'' to which he would be entitled for doing the same job had he been recruited directly by the hirer of labour, in this case the Second Respondent. The Claimant alleged that the Respondents failed to comply with their obligations under the AWR by providing him with only 28 days' annual leave and 30 minutes of paid rest breaks whereas direct recruits were entitled to 30.5 days' annual leave and one-hour paid rest breaks. The Employment Tribunal sitting in Leeds (``the Tribunal'') dismissed his claims and found that the differences in annual leave and rest breaks were compensated for by the Claimant's higher rate of hourly pay. The issue in this appeal is whether the Tribunal erred in law in looking at the Claimant's remuneration as a whole for the purposes of determining whether the requirements of AWR were met.
2. The Claimant initially worked for the Second Respondent from November 2014 until 15 January 2015 as a casual worker. During this period, he was engaged by the Second Respondent directly, and the AWR did not apply.
3. On 26 January 2015, the Claimant became an employee of the First Respondent. His services were supplied to the Second Respondent as an agency worker on a regular basis thereafter at its mail centre in Leeds. The Second Respondent has around 1,050 employees at the Leeds mail centre. The First Respondent's employees are used to cover 300 shifts per week.
4. By the middle of June 2015, the Claimant had completed 12 weeks with the Second Respondent as an agency worker. This triggered his entitlements under Regulation 5 AWR. By October 2015, the Claimant had become dissatisfied with various aspects of his pay and conditions and raised a grievance with both Respondents. His complaints included that he was not being provided with the same length of breaks as direct recruits. That grievance led to changes to his entitlements to breaks. However, several of the Claimant's other concerns remained unresolved. These included the fact that he was not provided with a swipe card for accessing the premises and was not entitled to membership of the on-site fitness centre.
5. The relevant concerns for the purposes of this appeal were as follows:
a. For each eight-hour night shift worked he was given a one-hour break but was paid only for 30 minutes of that break, whereas the direct recruits were paid for the entire hour. The Tribunal described the payment arrangements for breaks as follows:
``11. The equivalent comparator employee of the second respondent was paid at an hourly rate of £9.60. The claimant was paid at an hourly rate of £10.50. For an afternoon eight hour shift that would mean that a first respondent employee would receive £78.75 (7.5 x £10.50) and the second respondent's employee would receive £76.80 (eight hours x £9.60). That would mean, therefore, that a first respondent employee, an agency worker, would be paid £1.95 more than a second respondent employee for the same shift. The came about by reason an [sic] unexplained allocation of 30 minutes of a paid break to the first respondent employee, as confirmed by their wage slips. The intention had been that by rounding up an amount into the hourly rate there would be equivalence of pay; that was because the second respondent employee was paid for the entire shift (such as eight hours) which would include all breaks, whereas the first respondent's employee was only to be paid for the hours worked. It was never clear to the Tribunal why in the calculation of payment for an eight hour shift 30 minutes was deducted from the pay as opposed to the entire hour, or alternatively 40 minutes, if relaxation breaks were to be ignored due to them being subject to local practice.''
b. The Claimant was entitled to 28 days' annual leave compared to the direct recruits' entitlement to 30.5 days. The Tribunal dealt with this entitlement as follows:
``16. In respect of holidays, second respondent employees are entitled to 6.1 weeks' annual leave under their contracts of employment (30.5 days). First respondent employees are entitled to 5.6 weeks (28 days) of annual leave under their contracts of employment. In order to redress the imbalance the first respondent pays to the agency staff it places with the second respondent an enhanced hourly rate. This can vary between 11p and 19p per hour depending on the particular rate the employee is entitled to (taking into account length of service, shift patterns, etc.). The employees of the first respondent are not entitled to take leave for that additional 2.5 days or its pro rata equivalent. They receive remuneration in the rolled up hourly rate of pay instead, to compensate.
17. In respect of the calculation of holiday entitlement the first respondent adopts a different approach to that of the second respondent. This is because of the irregular work patterns undertaken by agency staff. 28 days' holiday entitlement will equate to 12.07% of wages earned. That is a computation which reflects the time worked in monetary terms. The first respondent's employees accumulate an individual fund based upon the financial equivalent of the hours they have worked over the holiday year. The first respondent then requires its employees to take holiday during the year in order for it to comply with the Working Time Regulations and to avoid the risk that the employee will not take leave which is for health and safety benefits, but choose to work that time. As most agency workers do not work for the same or greater periods than the second respondent's employees, the reality will be that they apportion a period of time as holiday when in fact they would never have been offered a shift and worked at all during that specified period. The employee will receive holiday pay for the period specified as holiday and it will be drawn down from the accumulated fund which was earmarked for holidays.''
6. It was in these circumstances that the Claimant lodged his complaint to the Tribunal alleging various breaches of AWR. It should be mentioned that whilst the complaints in respect of annual leave and rest breaks are set out, amongst other claims, in the Claimant's ET1, there is nothing complaining that he was entitled to work the same number of hours as any direct recruits.
The Tribunal's Judgment
7. Following a three-day hearing before Employment Judge Jones, sitting with lay members, the Tribunal declared that the Respondents had infringed the Claimant's rights under AWR in some respects including in relation to the provision of a swipe card and membership of the fitness centre. However, the complaints in respect of annual leave and payment for rest breaks were dismissed. There was a further claim which appeared to be that he was entitled to the same working hours as direct recruits. That was also dismissed.
8. As to holiday entitlement, the Tribunal held as follows:
``Was the claimant provided with the same entitlement to the same basic working and employment conditions as employees of the second respondent in relation to his holiday entitlement?
42. The claimant's annual holiday entitlement was based on a full-time equivalent of 28 days. The second respondent's employees had a holiday entitlement based on a full-time equivalent of 30.5 days.
43. Employees of either respondent received a pro rata equivalent entitlement to holiday if they do not work full time weekly hours of 39. In that respect the treatment was the same.
44. There was plainly a disparity in principle of 2.5 days between the first and second respondent employees, assuming they had each worked 39 hours per week. The same disparity would arise, proportionately, for those who worked fewer hours during the week.
45. That was compensated for by enhancing the hourly rate of the first respondent's employees. The second respondent's employees had been entitled to take the extra 2. 5 days as paid holiday in contrast to the first respondent's employees who could not take the extra 2.5 days as holiday, it already having been compensated for in the enhanced rolled up hourly rate they had received. However, parity would be achieved for a first respondent employee who chose not to put himself forward for work for that period of 2.5 days in the year. That employee would thereby receive the same...
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