Agency workers are entitled to equal treatment with permanent employees in relation to certain basic terms and conditions of employment. These conditions include pay, holiday entitlement and rest breaks. This rule applies after the employee has completed 12 weeks’ service. The relevant legislation is Regulation 5 of the Agency Workers Regulations 2010.
Angard Staffing Solutions Ltd fell foul of this rule. They were an agency who supplied an agency worker Mr Kocur to their client, Royal Mail Group Ltd. Mr Kocur completed the 12 weeks’ service, but was then only given 28 days’ holiday and half-hour rest breaks, when Royal Mail’s permanent employees got 30.5 days’ holiday and one-hour rest breaks.
Angard tried to argue that because the agency worker received a higher rate of pay, this should offset his lower holiday entitlement and rest breaks. He was paid £10.50 per hour and the permanent employees were only paid £9.50 per hour. This argument was rejected by the Employment Appeal Tribunal who said that you have to compare each term of the contract separately. Mr Kocur was entitled to the same holiday entitlement and rest breaks as permanent employees hired directly by Royal Mail. He was also entitled to a swipe card and gym membership.
The EAT also ruled that it would be possible in theory for an employer to pay a higher rolled-up hourly rate to agency workers, to include some of their holiday entitlement. Although this would only work for any extra contractual holiday entitlement above the statutory minimum of 28 days holiday (which the worker must be entitled to take and be paid for). However, it is important that the arrangements are transparent and set out exactly which part of the pay relates to annual leave. That didn’t happen in Mr Kocur’s case.
