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“Week 12” Rights Under the AWR

As you will be aware under the Agency Worker Regulations (“AWR”) an agency worker obtains “week 12” rights to the same basic working and employment conditions as direct recruits once they have undertaken the same role with the same hirer for 12 continuous calendar weeks.

The latest case to review what rights are included within the “week 12” rights was heard by the Court of Appeal in Kocur v Angard Staffing Solutions Limited. In this case, the Court of Appeal held that an agency worker is not entitled to the same number of contractual hours as a directly-recruited comparator under the AWR. This can be seen as welcome news for employers who will maintain flexibility when determining the hours an agency worker will work.  

In the case of Kocur, the Claimant worked for an employment agency for over 12 weeks and he alleged amongst other things, that the employment agency failed to comply with its obligation under the AWR as he was provided with less annual leave entitlement, less paid rest breaks and fewer hours of work in comparison to direct recruits.

The first instance tribunal found that because the Claimant was paid a higher rate of pay this compensated for the differences in breaks and annual leave entitlement. It also rejected the argument that he was entitled to equivalent hours to direct recruits. In reaching its decision the tribunal stated that the demand for agency workers fluctuates and any arrangement that did not provide flexibility was not intended by the AWR.

The Employment Appeal Tribunal (“EAT”) agreed with the tribunal’s decision in respect of equivalent hours but disagreed with its decision regarding breaks and annual leave. The EAT held that shortfalls in breaks and annual leave entitlement could not be compensated by the payment of an enhanced hourly rate. In the EAT’s view, an agency worker was not entitled to equivalent hours, however, they cannot be required to work longer shifts than the maximum applicable to employees.

The Court of Appeal agreed with the EAT’s decision and stated that if parity extended to the amount of work which agency workers are entitled to be given this would be contrary to the purpose of making use of agency workers, namely affording the hirer the flexibility in the size of the workforce available to it from time to time.

As previously mentioned, this can be seen as a victory for employers as it provides clarity in relation to equivalent treatment under the AWR and ensures that employers maintain the flexibility afforded when hiring agency workers.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.