Mr Andras Toth (C1) Mr Adam Toth (C2) v HR GO (Liverpool) Ltd and 1 other — 2021

The claimants were agency workers introduced by R1 to work for R2. The preliminary issue was whether their arrangements were covered by regulations 10 and 11 of the Agency Workers Regulations 2010, meaning that the Swedish derogation applied and the equal pay comparison with permanent employees would not arise. C1 gave oral evidence; C2 did not provide a witness statement, but the tribunal understood his position to be the same or broadly similar.

The tribunal found that the contracts made between the claimants and the various payroll companies satisfied the requirements of regulation 10. C1 accepted in evidence that he had agreed to the terms of those contracts, that he understood he was taking agency employment, and that he knew he was entitled to pay between assignments. The tribunal accepted that the fact that the phrase "Swedish derogation" did not appear expressly in the contracts did not prevent the clauses from operating as written.

The tribunal rejected the claimants' complaint that they had not been paid properly between assignments. It found no evidence of any proven gaps in work where R1 or the payroll companies failed to take reasonable steps to seek suitable work, or failed to make the minimum payment required between assignments. The tribunal also found no evidence that the contracts were a sham, illegal, or entered into under coercion.

Because the Swedish derogation applied, the claimants' comparison with a permanent employee of R2 did not arise. The tribunal therefore dismissed the claims that the claimants were entitled to the same basic working and employment conditions in relation to pay as R2's permanent employees and that they had not been paid properly.