AWR: Entitlement to equal holiday and rest time.

The Employment Appeal Tribunal hearing of  Kocur v. Angard Staffing Solutions Ltd & Anor looked at the argument of holiday allowance. The claimant, an agency worker, had a holiday allowance of 28 days' leave and 30 minutes paid rest breaks, whereas the hirer's employees were entitled to 30.5 days leave and one-hour paid rest breaks. The original Employment Tribunal had ruled that there had not been a breach of Regulation 5(1) of the Agency Workers Regulations 2010 (AWR), holding that an increment in pay compensated for the shortfall in annual leave and rest breaks.

Background

• Mr Kocur worked for a mail business as an agency worker.
• By the middle of June 2015, the Claimant had completed 12 weeks as an agency worker, triggering his entitlements under Regulation 5 AWR.
• The claimant stated that he was not receiving the same entitlements as the hirer’s employees.
• He received 28 days holiday, and half an hour paid lunch, while employees received 30.5 days holiday and an hour paid lunch.
• He was not offered the same number of hours’ work per week as directly engaged employees.
• The agency compensated Mr Kocur by paying a higher hourly rate of £10.50 instead of £9.60.
• The claimant appealed the original tribunal ruling.

Judgement

• The appeal on the points of annual leave and rest breaks was upheld. 
• An Agency Worker is entitled to the same terms and conditions as a directly engaged employee in regard to annual leave and rest breaks, once they have served the 12-week qualifying period.
• The payment intended to compensate for the shortfall in annual leave and unpaid rest time was neither transparent nor readily comprehensible, and so there was a breach of AWR.
• The AWR does not facilitate for an Agency Worker to be entitled to the same number of hours’ work per week as a directly engaged employee.

Aspire Comment

The outcome of this appeal hearing replaces the somewhat perverse decision of the original tribunal and clarifies Agency Worker rights in regard to holiday pay and rest breaks. 

With the use of pay between assignment derogated contracts coming to an end in April 2020, the question of parity in comparison to permanent employees is likely to become even more relevant.

It will be vital for hirers and contracting intermediaries to review their current contracts to identify where Agency Workers will be entitled to an uplift in terms and conditions in readiness for April 2020.

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