Kocur v Angard Staffing Solutions Ltd & Anor

Factual and Procedural Background

The workforce at Company B's Leeds Centre consists of approximately 1,050 permanent employees supplemented by agency workers supplied by Company A, a wholly-owned subsidiary. The agency workers typically cover about 300 shifts per week. The Plaintiff has been employed by Company A since January 2015, working mostly at the Leeds Centre with a variable pattern, generally under twenty hours per week.

In November 2015, the Plaintiff brought proceedings in the Employment Tribunal against both Company A and Company B, alleging breaches of the Agency Workers Regulations 2010 ("the Regulations"). The Employment Tribunal partially upheld the claim but dismissed claims relating to rest breaks and entitlement to equivalent hours of work.

The Plaintiff appealed. The Employment Appeal Tribunal (EAT) allowed the appeal on the rest breaks claim but dismissed it on the equivalent hours issue. The Plaintiff, with permission from the EAT, appealed the dismissal on the equivalent hours issue to the current court.

The Plaintiff was represented by Attorney Glyn QC and Attorney Caiden; the Respondents, Company A and Company B, were represented by Attorney Linden QC. The appeal was dismissed without hearing from the Respondents' counsel, and this document provides the court’s reasons for that decision.

Legal Issues Presented

1. Whether the phrase "duration of working time" in regulation 6(1)(b) of the Agency Workers Regulations 2010 includes entitlement to the same number of working hours as permanent employees of the hirer.
2. Whether agency workers are entitled to be allocated equivalent hours of work to those of comparable permanent employees under the Regulations and the underlying EU Directive 2008/104/EC (the Agency Workers Directive).

Arguments of the Parties

Appellant's Arguments

• The phrase "duration of working time" naturally includes any contractual term specifying the amount of work a worker is entitled and required to perform, including the total number of hours per week.
• If a comparator employee has a 39-hour working week, the agency worker should be entitled to the same number of hours after the qualifying period.
• This interpretation aligns with the purpose of the Directive, which is to ensure equal treatment of agency workers and permanent employees.
• The principle of equal treatment in Article 5 of the Directive supports this interpretation despite potential impacts on workforce flexibility.
• The existence of a 12-week qualifying period before rights arise does not affect the scope of those rights when they do apply.

Respondents' Arguments

• The phrase "duration of working time" refers to the length of continuous working periods (such as shifts), not the total number of hours worked over a week.
• The Regulations and Directive do not entitle agency workers to a guaranteed number of hours equivalent to permanent employees.
• Such an interpretation would undermine the flexibility inherent in the agency/hirer relationship, which the Directive expressly recognises and protects.
• The practical effect of the Plaintiff’s construction would be unworkable, given the variability of hours among permanent employees and the fluctuating demand for agency workers.
• The Employment Tribunal and Employment Appeal Tribunal’s interpretations, which the court endorses, correctly balance the Directive’s aims of protection and flexibility.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court began by examining the language of regulation 6(1)(b) defining "duration of working time" and the related definitions in the Working Time Regulations 1998 (WTR). It found that the phrase is naturally understood to refer to continuous periods of work, such as shifts or working days, rather than the aggregate number of hours worked in a week.

The court noted that the Regulations mirror the WTR, which sets maximum limits for working periods but does not regulate entitlement to a particular number of hours. The court rejected the Plaintiff’s argument that "duration" includes total weekly hours, emphasizing that such an interpretation would be linguistically unnatural and inconsistent with the statutory context.

Further, the court considered the purpose of the Directive and the Regulations, which is to ensure equal treatment of agency workers in terms of conditions while maintaining the flexibility that agency work provides to hirers. The court agreed with the lower tribunals that the Directive does not intend to guarantee agency workers the same quantity of work (hours) as permanent employees.

The court also addressed the practical difficulties of the Plaintiff’s construction, noting the variability of hours among permanent employees and the fluctuating demand for agency workers, which would make enforcing equivalence of hours unworkable.

Finally, the court considered the role of comparators under regulation 5(3), agreeing that while the Plaintiff’s critique of the Employment Tribunal’s reasoning was partially valid, it did not affect the overall outcome or the correctness of the decision.

Holding and Implications

The court’s final decision was to DISMISS the Plaintiff’s appeal against the dismissal of the claim concerning entitlement to equivalent hours of work.

The direct effect of this decision is that agency workers are not entitled under the Agency Workers Regulations 2010 to be allocated the same number of working hours as comparable permanent employees of the hirer. The ruling maintains the balance between protection of agency workers’ rights and the flexibility necessary for the agency/hirer employment model. No new precedent was established beyond affirming the interpretation adopted by the Employment Tribunal and Employment Appeal Tribunal.