Employment Law E-Bulletin – Issue 80

• Kocur v Angard Staffing Solution Ltd UKEAT/0105/19 – An agency worker under the Agency Workers Regulations 2010 does not have the right to apply for a directly employed vacancy with the hirer
• Covid-19 – temporary Statutory Sick Pay provisions revoked from March 2022
• Waters v The Mote Cricket Club [2022] EAT 28 – A worker operating through own business was not entitled to holiday pay as he was not a worker or employee

Kocur v Angard Staffing Solution Ltd UKEAT/0105/19 – An agency worker under the Agency Workers Regulations 2010 does not have the right to apply for a directly employed vacancy with the hirer

The Court of Appeal has held that an agency worker did not have the right to apply for a directly employed vacancy with a hirer, but simply had to be given the same information that was shared with internal candidates.

The Agency Workers Regulations 2010 (“AWR” 2010) is intended to give effect to the Temporary Agency Workers Directive (2008/104/EC) (the “Directive”). Regulation 13(1) of the AWR 2010 is intended to implement Article 6(1) of the Directive and is a right that temporary agency workers are eligible for from day one of an assignment. It provides that: “An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer … the hirer may inform the agency worker by a general announcement in a suitable place in the hirer’s establishment.”

The claimant, Mr Kocur, was employed by Angard Staffing Solutions Ltd (“Angard”). Angard was a wholly owned subsidiary of Royal Mail providing workers to Royal Mail, enabling it to respond to the fluctuating demand for postal workers. Mr Kocur was given regular work with Royal Mail, and Angard determined his work and conditions of employment. He alleged breaches of the AWR 2010, specifically relating to the advertisement of internal vacancies. Internal vacancies were advertised internally and put up on the noticeboard and offered to Royal Mail operatives in permanent posts first. Agency workers were not eligible to apply for the posts until they were advertised externally. However, when they were advertised externally, they were then in the pool of competition with all other external applicants.

Mr Kocur argued that regulation 13 of the AWR 2010 had been breached as he had not been able to apply for internal vacancies as permanent workers were able to. In the first instance, an Employment Tribunal held the provision under the AWR 2010 not only included the right to receive the same level of information as directly recruited employees, but also the right to apply and to be considered for internal vacancies in the same way. However, the Employment Appeal Tribunal (“EAT”) disagreed, stating that this did not extend to the right to apply for internal vacancies. It was sufficient if agency workers were informed of the relevant vacancies even if they were not given the same opportunity to apply for them.

The Court of Appeal reaffirmed the EAT’s position. It stated that if the AWR 2010 intended to include the right to apply for a vacancy it would have stated this and that it would have included information as to how this should be implemented.

Points to note:

This decision acknowledges the Directive’s position, that agency workers are not, in every way, comparable with permanent workers. It is useful confirmation for employers that regulation 13 of the AWR will be complied with where agency workers are notified of and provided with information about vacancies on the same basis as directly recruited employees.

Covid-19 – temporary Statutory Sick Pay provisions revoked

In response to the Covid-19 pandemic, the Government made some changes to the legislation concerning Statutory Sick Pay (“SSP”) to allow for individuals to be deemed to be incapable of work and therefore entitled to receive SSP where they were self-isolating or shielding.  These changes disapplied waiting days where an individual’s incapacity for work was related to COVID-19 so that SSP was available from the first day of incapacity.

As of 25 March 2022, the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2022 revoked these changes. This means that to be eligible for SSP individuals must now be sick or incapable of work, meaning that those who are asymptomatic or only have very mild symptoms will no longer be eligible for SSP even where they test positive. In addition, the entitlement to SSP no longer starts from day one of an employee’s absence relating to Covid-19 but has reverted back to the fourth day of absence.

Waters v The Mote Cricket Club [2022] EAT 28 – A worker operating through own business was not entitled to holiday pay as he was not a worker or employee

An Employment Tribunal (“ET”) held that the claimant, Mr Waters, was not an employee or worker of The Mote Cricket Club (the “Club”), but in business on his own account. Mr Waters was offered a contract by the Club on a contractor basis.

Mr Waters had his own gardening business which he had set up in 2011. The Club engaged his business in relation to the upkeep of its cricket pitches. Under the terms of the contract, 60 hours of work per week was required during the summer months, 40 of which had to be carried out by Mr Waters personally. Mr Waters attempted to renegotiate the terms against the Club and brought a claim against it when he was unsuccessful. The Club terminated the contract. Mr Waters pursued claims for holiday pay and notice pay on the basis that he was a worker or employee due to the control that the Club had over his work. However, at a preliminary hearing the ET held that he was not a worker or employee. A number of findings contributed to this conclusion, including, amongst other things, that Mr Waters was not under any control or supervision, he was expected to provide his own equipment from time to time, and he engaged other individuals to provide work under the contract with the Club.

Mr Waters’ appeal was dismissed by the EAT. It was found that although he was sometimes required to carry out additional work, this was not a key factor in determining whether or not he was a worker. Even if a person enters into a contract where it might be necessary to perform additional work for which there will be no further renumeration, this is consistent with someone who is a self-employed person in business on their own account. The EAT held that the ET had been entitled to find there were no fixed start and finish times which might be common in employment, and that there was also no requirement for Mr Waters to do the work personally. This work could be performed by a member of his team. Ultimately, the EAT held that there was not the type of control or monitoring that you would find with someone who was not in business on their own account.

Points to note:

This judgement is another reminder that the question of employment status is very fact specific. Courts will consider the reality of the working arrangements, as well as the terms of any written contract. Here Mr Waters was already running his own business when he contracted with the Club.

It is extremely important to ensure that engaged individuals have the correct label that truly reflects the relationship with an organisation. Getting it wrong can bring exposure to a number of employment tribunal claims, as well as tax and national insurance liabilities.