Last reviewed 16 July 2020

The Employment Appeals Tribunal (EAT) has dismissed an appeal lodged by Angard Staffing Solutions Ltd and Royal Mail Group Ltd against the Employment Tribunal’s decision that Mr D Kocur was an agency worker within the meaning of the Agency Workers Regulations 2010.

In a ruling available at https://assets.publishing.service.gov.uk/media/5f083a73e90e0712d0206ec7/1__Angard_Staffing_Solutions_Ltd_2__Royal_Mail_Group_Ltd_v_Mr_D_Kocur_and_Others_UKEAT_0050_20_JOJ.pdf, the EAT confirmed that the Tribunal’s judgment stands.

Law firm Irwin Mitchell is currently pursuing a Group Action Litigation on behalf of 67 agency workers (the Raczynska Claimants), in their employment tribunal claims against Angard Staffing Solutions Ltd (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 is an “agency worker” within the meaning of Regulation 3 and that Angard is a “temporary work agency” within Regulation 4.

The EAT noted that the case turned on whether, pursuant to Regulation 3(1)(a), Mr Kocur was “supplied” by the agency — Angard — to “work temporarily” for the hirer — Royal Mail.

Having found as a fact that each and every assignment was for a defined period by reference to a particular shift or shifts, the tribunal had properly concluded that Mr Kocur was supplied to work temporarily.

“It properly considered that this conclusion was not affected by the fact that Mr Kocur’s contract with Angard was open-ended,” the EAT decided, “nor by the fact that he was exclusively supplied to Royal Mail, nor by the fact that he had been regularly and repeatedly supplied in this way over the course of a period of some four years.”

A cross-appeal, to the effect that the tribunal erred by not proactively considering and determining whether it was an abuse of process for Royal Mail and Angard to have sought to dispute Mr Kocur’s status as an agency worker at all, was also dismissed.

Comment by Andy Willis, Head of Legal at Croner

This case shines a light on how careful employers must be to avoid becoming entangled in claims relating to agency worker status by making sure that they familiarise themselves with what constitutes an “agency worker”.

The Employment Appeals Tribunal, in dismissing the appeal, has set a precedent for how the agency worker status is interpreted.

However, it is unclear whether Royal Mail will appeal to the next court and what the outcome of that would be. Still, employers should make the necessary changes to their workforce with this case in mind.