Case name, year;  court

What the case was
about, and the end
result

Particular issues raised

Notes

Angard v Kocur 2020 EAT

Meaning of ‘temporarily’ – does AWR apply?

Kocur has emphasised that the focus should not be on the nature of the worker's contract with the agency, but the nature of the supply to the end-user in relation to each "assignment". A flexible arrangement, where the workers have zero-hours contracts and are mainly supplied to cover staff absence, or to deal with an upsurge in work, will be likely to count as "temporary". This is because the workers are likely to be notified periodically (say, weekly) of the shifts available, and therefore each week will amount to a separate temporary assignment.

Brooknight v Matei EAT 2018

Whether AWR applied – they did

c/cf Moran – no end date, but zero hours contract , for work as and when required.

Kocur v  Angard & Royal Mail EAT 2018

AWR paid leave, rest breaks, and working hours parity

Length of paid leave, length of paid rest breaks:  entitled to parity, could not be compensated by enhanced rate.

Not entitled to same working hours – would undermine inherent flexibility.

Twenty-four Seven v Afonso EAT 2018

The requirements to comply with regulation 10 / Swedish derogation (and thus avoid regulation 5)

Whether reference to NMW was sufficient to indicate ‘minimum scale or rate of remuneration or the method of calculating remuneration’ - yes.

Whether ‘5 days out of 7’ was sufficient to indicate ‘expected hours of work during any assignment’ - in the absence of a number of hours per day, no.

Amissah & anor v Trainpeople & LUL EAT 2016

Responsibility, as between agency and client, for regulation 5 rights

Compensation basis - just and equitable - as between hirer and (now insolvent) TWA. Must have regard to (a) the infringement and (b) the loss attributable to the infringement;  and loss should be taken to include the loss of any benefit that the Claimant might reasonably be expected to have had but for the infringement.  Remitted.

Coles v Ministry of Defence EAT 2015

Whether regulation 13 requires employers to give priority to agency workers in relation to vacant positions – no

AWR requires equivalent rights to comparable employees, in relation to working hours and pay;  but so far as vacancies are concerned, all an hirer has to do is provide equal access to information

Stevens v Northolt High School ET 2014

Teacher supplied to school as Temporary Head of Music by agency, complained of lack of parity – hirer found liable (underpayment £98 per day)

Agency was able to show it had repeatedly asked hirer for parity information – hirer had failed to provide it.  Agency not liable, Hirer 100% liable.

Moran v Ideal Cleaning Services EAT 2013

Whether AWR applied – they did not

Whether an engagement without a fixed end date could be ‘temporary’;  it could not, and therefore AWR could not apply

Bray v Monarch Personnel Refuelling (UK) Ltd ET 2012

Whether workers could validly be switched to regulation 10 contracts, in effect, mid assignment – the ET decided that they could, on the basis that a fresh assignment then commenced, albeit with the same hirer

The judge  (Judge Forrest) took the view that the BIS guidance (which suggested this could not validly be done) had no legal force, and said:

‘"It seems to me that, if the guidance is given any greater weight than would be afforded to a commentary provided by any other informed observer, then there is a risk that the principle of the separation of powers is infringed,  On that basis ... I take the guidance from [the Department of Business, Innovation and Skills] as entitled to the same weight as observations from any other informed commentator."

Unison v London Borough of Barnet ET 2012

A reminder that in a collective redundancy or TUPE situation, AWR requires that details of agency workers, in relation to the whole of the business (not just the part affected), must also be given to employee representatives

An oversight that could be expensive, to the tune of 90 days pay per employee

Public and Commercial Services Union v Kelly Services

 - ET 2012

An agency worker pay rate equal to the relatively low pay rate applcable to permanent staff who had performance issues did not constitute parity, for the purposes of AWR

Agency staff working through Blue Arrow for Airbus (sorry, case name not known) – ET 2012

An annual bonus of £1,000 payable to permanent staff did not fall within the AWR definition of ‘pay’