Members: Gerry Eckersley Anne Middleton v Mr Cameron Riddell — 2017

The claimant was an agency worker supplied by Wilson Gibb Management Services Ltd to Whirlpool as an agency driver from 10 November 2015 to 5 May 2016. The tribunal accepted that he was an agency worker, that the respondent was a temporary work agency, and that he had completed the 12-week qualifying period. The case turned on Regulation 5 of the Agency Workers Regulations 2010 and whether the claimant was entitled to the same basic working and employment conditions as a direct Whirlpool employee doing the same job.

The tribunal found that Whirlpool did not employ people to carry out solely driving duties. It accepted evidence that probationary Drivers and Drivers undertook week-long training in Manchester, used the HHT, carried out customer-facing duties, and were responsible for connections and installations, with probationary Drivers also subject to a probationary period. By contrast, the claimant's duties were limited to collecting the vehicle keys, carrying out vehicle checks, driving the route allocated by Whirlpool, unloading appliances and loading scrap appliances; he did not do customer-facing work, use the HHT, or carry out connections or installations. On that evidence, the tribunal held that his work was not the same or broadly similar to that of a probationary Driver or probationary Mate, and that there was no comparable employee for Regulation 5 purposes.

The claimant had argued that he should be treated as if he had been recruited directly and that he met the requirements for recruitment as a probationary Driver, but the tribunal said the relevant issue was the pay and conditions for doing the same job, not for a different job he might have obtained if directly recruited. It therefore dismissed the Regulation 5 equal treatment claim. The judgment also records that the respondent calculated the claimant had earned £453.70 less than a probationary Driver in the relevant period, but no award was made because the claim failed.

The claimant also sought payment in respect of PPE. The tribunal dismissed that complaint because it had no jurisdiction to determine it. It further noted the respondent's evidence that it provides required PPE to each worker and that the claimant had not requested any items during his period with the respondent. The judgment ends by dismissing the claim in full and makes no monetary award.