The EAT has confirmed that once agency workers have accrued 12 weeks on one assignment, they will be entitled to the same pay and certain terms as comparable permanent employees at the end-user looking at each term individually, and it is not a defence that the agency worker's overall package is at least as favourable. In this case the employer could not argue that the less favourable holiday and rest break entitlement was compensated by the agency worker's higher hourly rate of pay.
However, because pay and holiday entitlement are viewed separately, it may be possible to pay the agency worker for the holiday entitlement in a lump sum at the end of the assignment or by identifying that part of the higher hourly pay rate that represents rolled-up holiday pay (in relation to a contractual entitlement in excess of statutory holiday), provided this is transparent and readily comprehensible. (Kocur v Angard Staffing Solutions)
Acas has published new guidance on the rights of agency workers, available here.
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
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