Twenty-Four Seven Recruitment Services Ltd & Anor v Afonso & 190 Ors, Court of Appeal - United Kingdom Employment Appeal Tribunal, October 16, 2018, [2018] UKEAT 0311_17_1610

Resolution Date:October 16, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Twenty-Four Seven Recruitment Services Ltd & Anor v Afonso & 190 Ors
 
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Copyright 2018

Appeal No. UKEAT/0311/17/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 26 June 2018

Judgment handed down on 16 October 2018

Before

THE HONOURABLE MR JUSTICE SOOLE

(SITTING ALONE)

TWENTY-FOUR SEVEN RECRUITMENT SERVICES LIMITED APPELLANTS

& OTHER

MR D AFONSO & 190 OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

UKEAT/0311/17/LA

APPEARANCES

UKEAT/0311/17/LA

SUMMARY

AGENCY WORKERS

The Claimant agency workers made complaints to the ET that their contracts of employment with the Respondent temporary work agencies (``TWA'') did not comply with the requirements of Regulation 10(1)(a) of the Agency Workers Regulations 2010 (``AWR''); and that in consequence the exemption from pay parity under Regulation 5 did not apply.

The ET upheld the claims as they related to Regulation 10(1)(a)(i) and (iii). The requirement of written terms and conditions ``... relating to - (i) the minimum scale or rate of remuneration or the method of calculating remuneration'' was not satisfied by the term which provided for pay ``at a rate at least equivalent to the then current National Minimum Wage'' (``NMW''). The requirement relating to ``(iii) the expected hours of work during any assignment'' was not satisfied by the term that ``The Employee's expected hours of work on each Assignment are:- Any 5 days out of 7''.

On appeal the EAT held that Regulation 10(1)(a)(i) was satisfied by the contractual terms, but 10(1)(a)(iii) was not. The appeal was therefore dismissed.

THE HONOURABLE MR JUSTICE SOOLE

  1. This is an appeal by the First and Second Respondents (respectively ``TFS'' and ``Tempay'') against the Decision of the Employment Tribunal at Bristol (Employment Judge Mulvaney) sent to the parties on 14 September 2017 whereby it was concluded that their contracts of employment with the Claimants did not comply with the requirements of Regulation 10(1)(a) of the Agency Workers Regulations 2010 (``AWR''); and that in consequence the exemption from Regulation 5, so far as it relates to pay, did not apply.

  2. The background to this matter can be taken from the helpful summary in the Judgment. This is a multiple claim by 191 Claimants. Their claims arise from their employment as agency workers by the Respondent temporary work agencies (``TWA'') for supply to hirers and in particular to the Fourth and Fifth Respondent hirers (``Wincanton'' and ``DHL''). Their generic complaints relate to the alleged failure to pay them at the same rate as the permanent employees of Wincanton and subsequently DHL, pursuant to AWR Regulation 5.

  3. In September 2012 the Claimants' contract of employment with a TWA called The Best Connection (``TBC'') was transferred under TUPE to TFS. In April 2013 there was a further transfer from TFS to Tempay. In March 2016 there was a transfer back from Tempay to TFS. Tempay went into voluntary liquidation in May 2016 but remains a party to these proceedings by its liquidators.

  4. The Judge had to consider the Claimants' contracts with TBC, TFS and Tempay. This appeal is concerned with the latter two contracts which were materially in the same terms. The Tribunal held that these did not satisfy the conditions of Regulation 10(1)(a)(i) and (iii).

  5. Regulations 5 and 7 entitle agency workers to the same basic working and employment conditions as the hirer's own employees, if they complete a qualifying period of 12 weeks in a particular job. Regulation 10 reflects what is known as the ``Swedish derogation'' from the AWR, namely an exception to Regulation 5 to the extent that it applies to pay. If an agency worker is engaged under a permanent contract of employment with a TWA which provides for him/her to be paid between assignments and the conditions of Regulation 10 are satisfied, he/she is excluded from the entitlement to pay parity under Regulation 5.

  6. Regulation 10(1)(a) provides:

    ``(1) To the extent to which it relates to pay, regulation 5 does not have effect in relation to an agency worker who has a permanent contract of employment with a temporary work agency if -

    (a) the contract of employment was entered into before the beginning of the first assignment under that contract and includes terms and conditions in writing relating to -

    (i) the minimum scale or rate of remuneration or the method of calculating remuneration,

    (ii) the location or locations where the agency worker may be expected to work,

    (iii) the expected hours of work during any assignment,

    (iv) the maximum number of hours of work that the agency worker may be required to work each week during any assignment,

    (v) the minimum hours of work per week that may be offered to the agency worker during any assignment provided that it is a minimum of at least one hour, and

    (vi) the nature of the work that the agency worker may expect to be offered including any relevant requirements relating to qualifications or experience.''

    The Judgment

    Regulation 10(1)(a)(i)

  7. The Judge first considered the requirements in Regulation 10(1)(a)(i), namely terms and conditions in writing ``relating to ... the minimum scale or rate of remuneration or the method of calculating remuneration''.

  8. The TBC contract provided that ``This document, together with such Assignment Details Report as issued to you, constitutes your contract of employment''. Section 4 (``Remuneration'') included: ``4.2. Your rates of pay will at all times be no less than the National Minimum Wage (NMW) currently in force per hour worked. Rates of pay may differ for each Assignment and you will be notified in advance, including any relevant overtime rates''. The sample ``Assignment Details'' included, against a column for ``Rate of remuneration'', hourly rates of pay, e.g. ``Pay Normal £6.08''.

  9. The TFS and Tempay contracts were headed ``Temporary Workers Contract of Employment (Reg 10)''. The preamble provided that ``... the conditions below together with the details of your Assignment as contained in your assignment schedule(s) from time to time and the sections in the Employee on Assignment Handbook (which are expressly identified in that Handbook as having contractual effect) contain details of your terms and conditions of employment''.

  10. By the definition section ``Daily Pay'' was ``subject to paragraph 8 below, the amount of basic wages or salary payable to the Employee for any day calculated as the hourly rate, as notified to the Employee prior to the commencement of the Assignment and/or as varied during the Assignment or at any other time (provided always that such variation shall be notified to the Employee in writing), multiplied by the number of hours worked that day''. ``Assignment'' was defined as ``a placement or placements whereby the Employee is assigned or seconded to the Client to work in the capacity or capacities referred to within the Assignment details''.

  11. Under ``Conditions of Employment'', paragraph 4 provided that the agency ``... will endeavour at all times during the currency of this contract to allocate the Employee to suitable Assignments and, as a minimum, guarantees to the Employee that they will be offered at least 336 hours of work on Assignment with a Client or Clients through [TFS/Tempay] over the course of any full 12 month period commencing on the commencement date of the Employee's first Assignment at a rate of pay at least equivalent to the then current National Minimum Wage''.

    By paragraph 8: ``The Employee will be entitled to receive total gross payments in respect of each day worked ... payable weekly in arrears ... calculated as follows: ... the Employee's pay for that day shall be calculated as the Daily Pay ...''.

    By paragraph 17: ``Subject to paragraph 8, the Employee will only be paid in respect of hours worked which have been verified, at the hourly rates agreed and/or subsequently varied in respect of each Assignment. Such pay shall be at a rate at least equivalent to the then current National Minimum Wage. ...''.

  12. The final section of the contract, headed ``Regulation 10 of the AWR'' contained a number of matters material to that Regulation, but none in respect of Regulation 10(1)(a)(i), i.e. remuneration.

  13. Further to the contractual preamble, the Judge was provided by Tempay with two sample assignment...

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