Employer’s failure to specify working hours breached regulations

A recruitment agency’s employment contracts, which failed to specify the required number of working hours, have been ruled unlawful by the Employment Tribunal.

The case was brought by 191 workers. They were employed under different contracts, but their terms and conditions were materially the same. They were guaranteed "a rate of pay at least equivalent to the then current National Minimum Wage".

Their contracts provided that the hours of work likely to be involved for each assignment would be notified to them prior to the assignment's commencement and that the expected hours of work on each assignment were "any 5 out of 7 days/nights as required".

The workers alleged that they were not paid at the same rate as the hirers' permanent employees and complained to an employment tribunal.

The tribunal found that the contractual terms relating to pay and working hours did not comply with the Agency Workers Regulations 2010 because they neither identified "the minimum scale or rate of remuneration or the method of calculating remuneration" nor "the expected hours of work during any assignment".

The Employment Appeal Tribunal upheld the decision. It disagreed with some of the judge’s findings about identifying and calculating the minimum wage but said he had been right to conclude that the contractual provision to work any five days out of seven on each assignment did not satisfy the requirements of the regulations.

Simply stating "any 5 days out of 7" or "any 5 out of 7 days/nights as required" did not provide the agency worker with a figure for the expected hours of work per week or any other period. It was not for the agency worker to decide what the information meant in terms of expected hours per week, nor was it possible to do so with any degree of confidence.

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Case details
TWENTY-FOUR SEVEN RECRUITMENT SERVICES LTD & ANOR v D AFONSO & 190 ORS (2018)
EAT (Soole J) 16/10/2018

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