In one of the first recorded cases in the Agency Workers Regulations 2010 (AWR) we now have an initial view of the Employment Tribunal’s approach to ‘flipping’ agency workers onto a Regulation 10 compliant contract.

To recap: Regulation 10 AWR
Under the AWR, agency workers are entitled to equal treatment compared to a hirer’s directly recruited workers after completing a 12 week qualifying period. The parity treatment is limited to the terms and conditions relating to pay, the duration of working time, night work, rest periods, rest breaks and annual leave.  However where the temporary work agency engages an agency worker on a permanent contract of employment that complies with Regulation 10 of the AWR the agency worker will not be entitled to pay parity, but all other equal treatment rights apply. A Regulation 10 compliant contract (also known as a Swedish Derogation contract or Pay Between Assignments contract) must provide for the agency worker to receive a specified minimum amount of pay between assignments.

In order to be compliant, Regulation 10(1)(a) specifies that:
‘the contract of employment was entered into before the beginning of the first assignment under that contract.’

It is this provision that formed the crux of the case. If the contract does not fully comply with Regulation 10 it will not remove an agency worker’s right to pay parity.

Read the REC’s full case analysis of Bray and others v Monarch Personnel Refuelling (UK) Limited.