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prior to taking disciplinary action, as disabled individuals are protected from mistreatment for something arising in relation to their disability under section 15. Additionally, those who wish to take action to address absences amongst staff who qualify as disabled must be able to justify that these actions are a proportionate means of achieving a legitimate aim and that alternatives have been considered as this will be heavily scrutinised by any tribunal. Kocur v Angard Staffing Solutions Ltd & Anor Compliance with the Agency Workers Regulations 2010 (‘the Regulations’) must be considered on a term by term basis, the EAT has declared, highlighting that less favourable treatment in one area cannot be offset by more favourable treatment in another. Kocur was placed by Angard Staffing Solutions to work for a company in January 2015. By October, Kocur had become dissatisfied with various aspects of his pay in relation to workers who were directly employed by the company. He claimed that the agency failed to comply with regulation 5(1) of the Regulations by providing him less annual leave and fully paid rest break allowances than direct company recruits. His claims were dismissed by the ET, who found that the differences in annual leave and rest breaks were compensated for by the employee’s higher rate of hourly pay. In forming their decision, the ET evaluated regulation 5(1) which states that an agency worker should be entitled to “the same basic working and employment conditions” as a direct recruit. Consulting the EU Temporary Workers Directive 2008, from which the Regulations were originally constructed, the ET concluded that rights afforded to agency workers were there to offer protection for being less well-remunerated overall. As such, any disparity in leave entitlement was compensated by enhancing the hourly rate of pay for agency workers. As the claimant was actually paid more per hour than direct recruits, if he wished to take an additional two days’ unpaid holiday, something that was offered by the agency, he would come out with the same annual wage and leave entitlements as a direct recruit. The employee appealed on three grounds: firstly, that his lower rate of annual leave should not be compensated by a higher rate of pay; secondly, that he should be entitled to the same number of weekly
hours as direct recruits; and thirdly, that the difference in payment for his rest breaks could not also be compensated by a higher rate of pay. The EAT upheld the first and third
claimant on two separate occasions, advising him that he must provide proof of this application by no later than 11 August or face risk being dismissed as part of company policy. The manager did not receive any proof from the claimant by the deadline and therefore sent a letter of dismissal to his home address, which was received on 15 August. The claimant was not given the application by this point and had emailed his employer’s human resources representative on 12 August with the relevant documents attached. However, the representative was not able to open the attachments at the time. Although the claimant’s manager later learned that the appropriate information had been provided and therefore offered to reengage the claimant as a new starter, the claimant rejected this offer and brought a claim of unfair dismissal. The ET dismissed his claim. In reaching their decision, the ET outlined that the employer had reasonable cause to believe that the claimant was no longer legally able to work in the UK. They reasoned that the employers were correct to try and avoid the sanctions that would have been placed upon them under the provisions of the Immigration, Asylum and Nationality Act 2006. The employer had no reason to believe that the claimant had not been disqualified from employment by reason of immigration status and as such an appeal would not have been necessary. Whatever the outcome, the claimant would still not be able to legally work for the employers. The claimant appeal was upheld by the EAT who submitted the case back to the ET for further review. They outlined that the ET had erred in finding there were no grounds for appeal against the dismissal and that therefore, under the provisions of the Employment Rights Act 1996, the employers had acted unreasonably. The EAT reasoned that if the employee had been allowed to appeal he could have provided the requested evidence and therefore prove his immigration status. In reality, there was never a point in the period when the claimant was not able to legally work in the UK. This decision reminds employers of the importance of allowing the option to appeal a dismissal. Amongst other things, it creates an opportunity for employees to provide evidence that had not been previously available, which would render the decision too harsh or inappropriate. n opportunity to appeal this decision. The claimant had actually sent his
grounds but dismissed the second. The EAT outlined that the ET was
mistaken to dilute the effect of regulation 5(1), explaining that these conclusions could potentially render agency work to be less attractive given that higher rates of pay could be said to compensate for unstable and irregular work. As far as the EAT could establish, the allowance for additional, unpaid leave to be taken by the employee was not a transparent system, with no evidence to support that any agency employee had actually taken the leave offered. They concluded that the employee being paid more overall did not change the fact he was paid less for rest breaks and was not entitled to the same levels of annual leave as direct recruits. As a result, the agency was not providing ‘the same’ working conditions and thus was operating in breach of regulation 5(1). This decision reminds employers of the need to ensure payment practices provide agency workers the same pay and leave allowance awarded to direct recruits. It should be kept in mind that less favourable treatment in one area, such as lower leave allowance, cannot be compensated by more favourable treatment in another. ...never a point in the period when the claimant was not able to legally work in the UK Mr F Afzal v East London Pizza Ltd t/a Domino’s Pizza The claimant, Mr F Afzal, originally from Pakistan, was employed as a delivery driver in October 2009. During his time working for the company, he was well-regarded and was in training to become a branch manager. In June 2011, the claimant married a European national, granting him time-limited leave to work in the UK that was due to expire in August 2016. This meant that, in order to legally work in the UK, the claimant had to apply for permanent status between July and August. His manager was very familiar with the immigration process and wrote to the
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Issue 43 | September 2018
| Professional in Payroll, Pensions and Reward |
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