Employment Law Case Update: Employment Status for Agency Workers

Determining employment status is a tricky area of employment law and even more so with regards to agency workers.  Our Employment Law team reviews the case of Angard Staffing Solutions and Royal Mail v Mr D Kocur and others, which illustrates how Courts approach the question of whether or not a person is an agency worker for the purposes of the Agency Worker Regulations 2010.

Angard is a company that provides “flexible resource” employees exclusively to Royal Mail. Mr Kocur and other employees of Angard were engaged by Royal Mail to cover “additional demand” and “unexpected need” for mail sorters. Mr Kocur would be notified by text or email that a shift was available. The notification would inform him of the place of work, and the start and end dates. If Mr Kocur responded that he was available, the shift would be confirmed. Between January 2015 and January 2019 Mr Kocur worked at least one shift a month. On average he worked two shifts and a total of 11 hours per week.

Mr Kocur filed a claim with the Employment Tribunal (ET) asking it to clarify his and other workers’ status as agency workers. If they were agency workers they would be entitled to certain protections under the Agency Worker Regulations 2010. Royal Mail and Angard argued Mr Kocur was not an agency worker because the nature of his relationship to Royal Mail was permanent and indefinite. The ET rejected this argument and found that Mr Kocur and other employees of Angard should be classified as agency workers.

Royal Mail and Angard appealed to the Employment Appeal Tribunal (EAT), arguing that the ET had misinterpreted previous authorities “on the meaning of ‘temporary’ and ‘to work temporarily’” and that the nature of the relationship between Mr Kocur and Royal Mail was a permanent one. Royal Mail and Angard claimed the ET did not give proper weight to the fact that Mr Kocur’s employment relationship with Angard was permanent, and that Angard exclusively supplied workers to Royal Mail.

The main question for the EAT was whether Mr Kocur was supplied as a worker to Royal Mail on a temporary basis. If the nature of the relationship was temporary, Mr Kocur was an agency worker.

The EAT rejected the appeal and upheld the ruling of the ET. It found the ET had used the correct approach when it considered the nature of each assignment given to Mr Kocur as each assignment had a set start and end date. The ET correctly concluded that by defining set periods of work this way, the working relationship was temporary. This temporary nature of the working relationship was not changed by the fact that Mr Kocur worked shifts for Royal Mail almost every week.

The EAT rejected the companies’ argument that because Mr Kocur was permanently employed by Angard, and exclusively worked for Royal Mail, that the nature of the relationship between Mr Kocur and Royal Mail must also be one of permanent employment. The EAT found that the contract between the worker and the agency (Angard) is relevant but not determinative of the relationship between the worker and the hirer (Royal Mail).

This case shows how the ET and EAT will approach cases regarding agency workers. The ET will focus on the nature of each assignment and whether it was open ended and permanent. Other facts such as the contract between the worker and the agency are relevant facts of the case, but are not determinative of its outcome.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.