Irwin Mitchell Clients Delighted EAT Upheld Employment Rights Of Individual Agency Workers In Angard And Royal Mail v Kocur

The Employment Appeals Tribunal (EAT) has thrown out an appeal lodged by Angard Staffing Solutions Ltd and Royal Mail Group Ltd against the Employment Tribunal’s decision that Mr D Kocur (and others- the “Raczynska Claimants” ) who worked for the organisations named above, was an agency worker within the meaning of Regulation 3 Agency Workers Regulations.

Under the Agency Workers Regulations 2010, agency workers have a right to no less favourable treatment compared to employees who are employed by the end user (in this case the Royal Mail). They have the same right to the same treatment as comparable employees with respect to basic employment and working conditions, once they have completed a qualifying period of 12 weeks in a particular job. This covers issues such as bonuses, annual leave, rest breaks, night work, paid time off for ante- natal appointments and access to collective facilities and amenities.

Irwin Mitchell is currently pursuing a Group Action Litigation on behalf of 67 agency workers, in their employment tribunal claims against Angard Staffing Solutions Ltd (who had been engaged as agents for Royal Mail to find workers) and Royal Mail Group Ltd on the grounds of the unequal treatment of the agency workers Angard Staffing Solutions supplied.

In Mr Kocur’s case, following a Preliminary Hearing held on 15 August 2019, the Employment Tribunal had held that Mr Kocur was an “agency worker” within the meaning of Regulation 3 and that Angard is a “temporary work agency” within Regulation 4. 

Angard Staffing Solutions and Royal Mail Group had appealed against this decision and argued that Mr Kocur was not an agency worker (and so not entitled to the same rights as other employees). Mr Kocur and the Raczynska Claimants however maintain that the Tribunal’s substantive decision was correct.  

Summing up the position, Judge Auerbach said that the Employment Tribunal had carefully looked at all the factors- not just Mr Kocur’s contract with Angard Staffing Solutions, but also what happened in practice and had correctly interpreted case law, particularly Moran and Brooknight in coming to its conclusions. 

“It properly found at [38] that: “Every engagement over the four years was for a finite period.”  It went on to properly find at [39] that: “The defined periods of work to provide cover is fatal to the argument that it is not temporary.” And “The Tribunal went on rightly to conclude that there was no reason to suppose that the Directive was not intended to apply where the agency supplied workers to only one hirer.”

Supporting the other findings by the ET, the EAT concluded “For all of these reasons the appeal is dismissed.”

According to Shazia Khan, employment partner at Irwin Mitchell, who is representing the 67 Multiple Claimants in the Group Action, this appeal action by the Royal Mail is disappointingly indicative of the organization’s attitude to its agency workers. 

Expert Opinion

“My clients are delighted that the EAT recognised this appeal for what it was- another shameless attempt by Angard Staffing Solutions and Royal Mail to treat my clients as second class citizens by denying them their Agency worker rights.

"We are disappointed that the unfavourable treatment continues with the failure to provide equal access to provision of PPE and hand sanitisation bottles to my Agency worker clients as compared to Royal Mail workers. My clients have further been denied the £200 recognition payment awarded for the role postal workers continue to play during the Covid-19 crisis. The payment has apparently only been made to Royal Mail colleagues and not Agency workers in recognition of the their efforts during the pandemic.

“The ET made it very clear that Mr Kocur and my clients are agency workers and should be treated in the same way as Royal Mail’s own employees. Perhaps Royal Mail and Angard Staffing Solutions will now finally take this on board.”
Shazia Khan - Partner