REWARD INSIGHT
Equal treatment, PCP, redundancy
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Kocur v Royal Mail Group Ltd Agency workers are entitled to ‘the same’ basic working and employment conditions as a direct hire of the end-user after completing twelve continuous weeks’ engagement in the same role with the end-user. The equal treatment principle relates to terms and conditions including pay, duration of working time, rest breaks and annual leave. The Employment Appeal Tribunal (EAT) has considered whether a breach in equal treatment can be compensated for by providing the agency worker with higher pay. The worker commenced employment with an employment agency from 26 January 2015 and was supplied to the end-user to carry out work at a mail centre. By June 2015, the agency worker had completed twelve continuous weeks in the role entitling him to equal treatment under the Agency Worker Regulations (‘the Regulations’). In October, the worker raised a grievance with both the agency and the end-user about various working conditions, including the complaint that he was provided with shorter breaks. On conclusion, the worker’s entitlement to breaks was amended but his other concerns went unresolved. The worker made a claim to the employment tribunal (ET), alleging the end- user had breached the Regulations. The ET
found his rights as an agency worker had been breached in relation to two grounds of his claim: he had not been provided with a swipe card to access the work premises; and had not been entitled to become a member of the on-site fitness centre provided by the end-user. ...must receive ‘at least’ the conditions of comparable direct employees... Turning to employment conditions, the ET found the agency worker was entitled to a one-hour rest break when working an eight-hour night shift and was paid for thirty minutes of the break; comparable direct recruits received the same length rest break but were paid for the hour. Additionally, the agency worker had a contractual entitlement to 5.6 weeks’ annual leave whereas comparable direct recruits had 6.1 weeks’ leave. The tribunal noted the disparities but concluded there was no breach because these were compensated for by the worker receiving a higher hourly pay of £10.50 whilst direct recruits were paid £9.60 per hour. On appeal, the EAT highlighted that the
entitlement to ‘the same’ basic conditions means the agency worker must receive ‘at least’ the conditions of comparable direct employees, providing for a minimum not a maximum level of entitlement. When determining whether an agency worker’s rights are met, tribunals should take a term-by-term approach and there is no right to offset a failure to provide the same entitlement for one condition with a higher entitlement for a different condition. Therefore, the EAT held the Regulations had been breached as the worker did not receive at least the same entitlement to annual leave or payment for his rest breaks when compared to a comparable direct hire. United First Partners Research v Carreras The duty to make reasonable adjustments under the Equality Act 2010 arises where a disabled person is placed at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) which operates in the workplace. The employee worked for a brokerage firm as an analyst, regularly working long hours, often staying until 9pm each evening. He was involved in a bike accident in July 2012 which left him with symptoms including headaches and fatigue. On returning to work, the employee found he
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| Professional in Payroll, Pensions and Reward | May 2018 | Issue 40
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