REWARD
Agency workers, pregnancy discrimination, evidence
NicolaMullineux, senior employment specialist for Peninsula , reviews the decisions in three cases
Angard Staffing Solutions Ltd and another v Kocur and another This case involved the Agency Workers Regulations 2010 (‘the Regulations’) which give agency workers the day-one right to receive information from the hiring company of any internal vacancies available. The Regulations also stipulate that agency workers must be given, after twelve weeks of work, the same basic working conditions as they would receive if they had been directly recruited by the hiring company. Angard Staffing Solutions (‘Angard’) is the recruitment partner for Royal Mail Group and is wholly owned by the courier company, providing agency workers directly to it. In a previous case against Angard, there were several claimants, including Mr Kocur, who brought a claim concerning whether individuals assigned to Royal Mail could be considered agency workers. Following the ruling that confirmed that the claimants were agency workers, two of them then proceeded to bring claims against both Angard and Royal Mail over whether agency workers supplied by Angard have the legal protections under the Regulations and what those rights are.
These claims included that the Regulations had been breached in several ways, including that agency workers: ● being informed that they were ineligible to apply for certain internal vacancies unless they were advertised externally ● having to work longer shifts than directly hired employees ● being offered overtime only if directly hired employees did not volunteer for it ● having to wait to be given a pay rise for a longer period than directly hired staff. With regards to vacancy information, the claimants had argued that the right to information must also amount to a right to apply for the vacancy. However, the employment appeal tribunal (EAT) held that the right for agency workers to be notified of job vacancies available at a host company is purely a right to information, which does not create an automatic right to be allowed to apply or be considered for the vacancy. The EAT went on to confirm that agency workers have the same right to receive information as those who have been directly recruited by the hiring company, and puts agency workers at an advantage when compared to external candidates who may or may not either receive the same level of
information or hear of a vacancy in the first place. Touching on the issue of shift lengths and overtime, the EAT explained that the right under the Regulations for agency workers to receive the same working conditions as direct recruits after twelve weeks of work includes working time aspects. However, this right does not give agency workers the same rights to shift lengths or pre-scheduling of breaks. In the same vein, there was no automatic equal right for agency workers to be granted the same overtime options as end-user staff. Regarding pay, the EAT held that delaying agency workers’ pay was a potential breach of the Regulations as this relates to the right for agency workers to have the same working conditions as direct recruits – just as where shifts and overtime are concerned. However, it does not translate to the contents of agency workers’ payslips having to be the same as those for direct recruits. Chief Constable of Devon & Cornwall Police v Town The EAT has upheld a ruling that a pregnant police officer was discriminated against due to a policy that meant pregnant officers could be transferred to a desk-based role. An employee of Devon and Cornwall Police (‘the Police’) was moved from her position on the response team to
...does not translate to the contents of agency workers’ payslips having to be the same as those for direct recruits
| Professional in Payroll, Pensions and Reward | April 2021 | Issue 69 40
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