Can agency workers, entitled after 12 weeks to the same basic working conditions as an end-user’s employees, be compensated for less holiday or unpaid breaks by a higher hourly pay?
No, held the Employment Appeal Tribunal (EAT) in Kocur v Royal Mail.
Kocur v Royal Mail
Regulation 5 of the Agency Workers Regulations (AWR) 2010 entitled the Claimant to the same basic working and employment conditions as the hirer’s comparable employees. He got 2.5 days less holiday and a 1-hour rest break but was only paid for 30 minutes, not the hour. His daily pay was £1.95 higher. The tribunal found that this offset those less favourable terms.
The EAT disagreed. The entitlement is to the same basic terms and conditions as comparable employees on a ‘term-by-term’ basis with equal terms, not by comparing the overall package.
However, parity can be achieved in different ways, e.g. identical holiday pay could be provided by a lump sum at assignment end, or in ‘rolled-up’ holiday pay. If so, the payment mechanism must be transparent so the agency worker can readily ascertain how remuneration relates to annual leave.
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