In Bray & others v Monarch Personnel Refuelling (UK) Limited, Monarch (the agency) supplied the 8 Claimants to BP as tanker drivers. BP had permanent employees who performed the same role and were paid 70p an hour more than the agency workers. The Agency Workers Regulations 2010 give agency workers the right to equal treatment with respect to pay once they have completed a 12 week qualifying period, unless they have entered into an effective Pay Between Assignments (“PBA”)/Swedish Derogation contract with their agency in line with the requirements of Regulation 10.
When the AWR came into force on 1 October 2011, BP required Monarch to “switch” all agency workers on to PBA/Swedish Derogation contracts. By 30 November 2011, Monarch had terminated the then current assignments of the Claimants and issued new PBA/Swedish Derogation employment contracts, making it clear that this new form of contract would apply to their new assignment with BP (which was for the same role of tanker driver) commencing on 1 December 2011. Monarch went to efforts to make very clear to the agency workers the difference in terms and consulted with them accordingly.
It has (until now) been unclear whether “switching” from one type of agency worker contract to another part way through an assignment would be sufficient to comply with Regulation 10. In particular, Regulation 10 requires, "the contract of employment [to be] entered into before the beginning of the first assignment under the contract...". What is the “contract of employment” referred to? What is meant by the “beginning of the first assignment”? Would Regulation 10 be complied with if an agency worker was already on a long-term assignment with an end-client but that was artificially terminated and then re-started on new PBA/Swedish Derogation terms (essentially avoiding their reaching the 12 week qualifying period)?
The Judge found that Regulation 10 had been complied with in this case by that “switch” even though in practice, from one day to the next, the workers continued to perform the same role for the same end-client. The Judge was very particular to ensure the old form of contract and the old “assignment” had been validly terminated and that a fresh assignment and contract had been entered into, and also, that all of the criteria under Regulation 10 had been complied with in the drafting of the PBA/Swedish Derogation contract. It did not matter that these agency workers had been supplied by the agency to the end-client to perform the same role on a long-term basis and that there had been an interruption to their continuity of service. It was purely a question of the contractual validity of the termination of the old contract and of the Regulation 10 compliance of the new one. The Claimants’ AWR claims were therefore dismissed.