Mr. D McQuillan v PPF Limited t/a ADR Network — 2022

Mr McQuillan, an agency LGV driver engaged on 15 February 2021, brought a claim under regulation 5 of the Agency Worker Regulations 2010. He argued that the daily uplift of £30 Monday to Friday and £35 on Saturday, described as a daily bonus or retention bonus, should not be treated as part of his pay, and that he should have received equivalent back pay when Wincanton employees received a lump-sum payment following a pay rise negotiated with their union.

The tribunal applied a term-by-term approach under the AWR and held that the daily uplift was, in substance, part of the claimant's basic pay. Although labelled as a bonus, it was paid as a matter of course when he accepted the assignment and carried out the work. On the facts found, the claimant's weekly remuneration during the relevant period was at least equal to what a direct employee would have received, both before and after the employees' December 2021 pay rise.

The tribunal found that there was no shortfall in pay and therefore no breach of regulation 5. It also held that the one-off payment made to employees was back pay referable to the earlier effective date of the pay increase, not a separate bonus, and that the claimant was not entitled to an equivalent payment because he had already been paid at the same level or higher each week. Although the claim was one day out of time, time was extended as just and equitable because there was no prejudice to the respondent, and the claim was dismissed.