For many businesses, the whole point of using the services of agency workers is to cater for peaks and troughs in their demand for labour. The Court of Appeal made that point in rejecting arguments that agency workers have a legal entitlement to work the same number of hours as directly employed staff.
The case concerned a postal worker who was engaged to work at a sorting office by a staffing agency which was a wholly owned subsidiary of Royal Mail. He was typically allocated less than 20 hours of work per week, as compared to the 39 hours per week worked by the office’s full-time staff.
He launched Employment Tribunal (ET) proceedings against the agency and Royal Mail, arguing, amongst other things, that that disparity amounted to a breach of the Agency Workers Regulations 2010 (AWR). The AWR enshrine the principle that agency workers who are engaged by the same business for more than 12 months are entitled to the same basic employment and working conditions as if they had been recruited directly as employees.
In rejecting that complaint, however, the ET ruled that the objective of the AWR was not so far-reaching as to oblige Royal Mail to make work available to agency workers on the same basis as to its own staff. Royal Mail’s aim in engaging agency workers was to supplement its own workforce as and when demand required. In subsequently rejecting his challenge to that decision, the Employment Appeal Tribunal found that his interpretation of the AWR would have absurd and unworkable results.
Dismissing his appeal against the latter decision, the Court found that, on a true interpretation of the AWR, they do not entitle an agency worker to work an equivalent number of contractual hours to a comparator employee. To rule otherwise would compromise the ability of businesses to meet ups and downs in their need for labour and to offer flexible hours to agency workers.
