In our latest employment law update, Deminos litigator Ed McFarlane has some important news regarding Agency Workers’ rights.
An important case for agencies and end-users, the Employment Appeal Tribunal ‘EAT’ holds that for established Agency Workers (with ’12-week rights’) you have to match ‘term-by-term’ the basic working terms and conditions of comparable employees. A ‘package approach’ like a higher rate of pay to offset less holiday will not wash.
Unfortunately for the employer and agency here, a higher overall daily rate of pay couldn’t be relied upon to ‘justify’ 30 minutes of unpaid rest. So the ‘package’ approach, as employers might use to justify disparate benefits for fixed-term employees entitled to equal treatment to comparable permanent employees, is not going to hold up against claims for breaches of Regulation 5 AWR 2010.
The basic conditions affected are:
(b) the duration of working time;
(c) night work;
(d) rest periods;
(e) rest breaks; and
(f) annual leave.
Note that offering agency workers longer or shorter shifts than comparable employees is also out. Thankfully, the EAT rejected a literal take on ‘duration of working time’, so you don’t have to provide the same number of hours per week!
A positive, the EAT gave the nod to ‘rolled-up’ holiday pay/lump sums in lieu to match holidays, so long as it is done transparently. At least this provides certainty as to applying Regulation 5.
Here is a link to a recent case summary: