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The recent case of Kocur v Royal Mail in the employment appeal tribunal asked whether agency workers, who are entitled after 12 weeks to the same basic working conditions as an employee, can be compensated for less holiday or unpaid breaks by a higher hourly pay?
The EAT found that failure to provide the same terms and conditions as an employee cannot be offset by higher pay. Their entitlements must be considered on a term by term basis rather than by comparing the overall package.

However this can be achieved in different ways, for example identical holiday pay can be provided by a lump sum, so long as it is clear how this sum relates to annual leave.

Agency workers have ‘day one’ and ‘12 week’ rights:
Day one rights:
  • the same access to facilities such as staff canteens, childcare and transport as a comparable employee
  • to be informed about job vacancies.
After a 12 week qualifying period, an agency worker will be entitled to the same basic conditions of employment as if they had been directly employed:
  • pay - including any fee, bonus, commission, or holiday pay applicable
  • working time rights - for example, including any annual leave above what is required by law
  • It does not entitle the agency worker to precisely the same number of hours as a comparable employee, other than under working time rights, ie shift length
  • It does not include redundancy pay, contractual sick pay, and maternity, paternity or adoption pay (but does include time off to attend antenatal appointments).
Reforms and recommendations for agency workers have been made by the Taylor review, with the aim of improving transparency and closing loopholes which deny agency workers security.
These include the right to a written statement of terms and the right to request a ‘more predictable contract’ where appropriate.
The government has accepted the Taylor Review's recommendation to make it easier for atypical workers to establish continuity of service as well as the right to an itemized payslip.
A range of consultations have been launched to explore how to improve this confusing area of law, as well as looking at further measures to protect workers’ rights.


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