The Employment Appeal Tribunal (EAT) has ruled that individual workers for Royal Mail are agency workers and therefore entitled to the same employment rights as other employees.
The EAT upheld a ruling against Royal Mail and Angard Staffing Solutions, a dedicated recruitment partner for Royal Mail, which found a group of workers should have been classified as agency workers and given the same rights as other employees within Royal Mail.
Under the Agency Workers Regulations 2010, agency workers have the right to no less favourable treatment compared to others who are employed by the organisation. This covers the same right to basic employment and working conditions; bonuses; annual leave; access to collective facilities and amenities; and paid time off for antenatal appointments, once the agency worker has completed a qualifying 12-week period.
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In August 2019, an employment tribunal ruled that Mr D Kocur and other claimants, who worked for Royal Mail and Angard Staffing Solutions, were agency workers and would be entitled to such employment rights as other staff working for Royal Mail.
The tribunal heard Kocur received a formal offer of employment as a “flexible resourcing employee” from Angard in a letter dated in January 2015. In the terms and conditions of his employment, Kocur was told he would carry out any work that was reasonably required by Angard at Royal Mail’s request. It also said: “You should continue to report to and be managed by Angard but shall report on day-to-day matters to Royal Mail as notified to you from time to time.”
The tribunal heard Royal Mail uses Angard staff to cover additional demand and unexpected needs in the case of sickness absence. Most Angard staff complete mail processing work for Royal Mail.
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Between January 2015 and January 2019, Kocur worked regular and frequent shifts at the Leeds mail centre. The tribunal heard he worked one or more shifts every month between this period, averaging two shifts with a total of 11 hours per week. Occasionally, he had a longer engagement with Royal Mail, usually during the Christmas season. In one case, he worked for four weeks at the Castleford mail centre between 26 November and 21 December 2018.
However, he was suspended in January 2019, which was the subject of one of his complaints to the tribunal. He and other claimants brought complaints that Royal Mail and Angard infringed on their rights as agency workers.
Other complaints included the late payment of the 2017 Christmas bonus; exclusion of the claimants from applying for internal vacancies on 14 May and 8 June 2018; issuing claimants with a shift that was 12 minutes longer than comparable Royal Mail employees; and deducting work breaks from claimants’ overall duration of shift working time.
The tribunal unanimously ruled such infringements acted against the claimants’ employment rights as agency workers.
Angard and Royal Mail appealed against this decision, arguing that Kocur and the other claimants were not agency workers and so not entitled to the same rights as other employees.
But the EAT dismissed the appeal. In his judgment, judge Simon Auerbach said the original tribunal had carefully looked at Kocur’s contract with Angard and what happened in practice and had correctly interpreted case law.
Andrew Willis, head of legal at HR-inform, said the EAT’s ruling sends a clear warning to other employers that tribunals will look to assess the “true relationship” between employers and workers in disputes of this nature.
“If a worker has been falsely labelled and therefore denied their rights, intentionally or not, employers could face substantial tribunal payouts alongside the potential for reputational damage,” Willis said. “It is therefore essential that employers correctly identify the workers they need from the start of any engagement or employment.”
If employers are taking on agency workers, Willis said firms will need to take steps to ensure these workers receive the same rights as other staff at the 12-week point. He warned any attempts to circumvent the provision of this right would not be well-received by tribunals.
Shazia Khan, employment partner at Irwin Mitchell, said the appeal by Royal Mail is “disappointingly indicative of the organisation’s attitude to its agency workers”. Khan is currently pursuing group action on behalf of 67 agency workers in their employment tribunal claims against Angard and Royal Mail on the grounds that the Angard workers were treated unfairly when compared to other employees.
She said: “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 [them] as second-class citizens by denying them their agency worker rights.”
However, she said that, despite this ruling, unfavourable treatment against agency workers continues as they are not provided with equal access to personal protective equipment or hand sanitiser, and have been denied a £200 recognition payment awarded for the role postal workers play during the current coronavirus crisis. She explained: “The payment has apparently only been made to Royal Mail colleagues and not agency workers in recognition of their efforts during the pandemic.”
A Royal Mail spokesperson said the organisation will “reflect” on the EAT’s judgment and will consider an appeal to the Court of Appeal. Angard could not be reached for comment.