Agency Workers and the Right to be Informed of Vacancies

The Court of Appeal has recently provided a judgement on the interpretation of the Agency Workers Regulations 2010 (‘AWR 2010’) in the context of the extent to which agency workers should be informed of vacancies by the business where they are working.

The case is interesting on a standalone basis, but it also gives us the opportunity to draw attention to the rights of agency workers, which many employers may not be aware of.

The Law

By way of background, it is important to know that Regulation 13(1) of the AWR 2010 states as follows:

An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer … the hirer may inform the agency worker by a general announcement in a suitable place in the hirer’s establishment.

In simple terms, this means that if a business uses agency workers (or ‘temps’ as they are often referred to), the agency workers have the right from the very first day of their assignment to be informed of any relevant vacancies. This is a very important (albeit in our experience, a rarely remembered) practical requirement of the AWR 2010.

The Case

At face value, the provisions of Regulation 13(1) AWR 2010 seem reasonably clear. However, in the case of Kocur v Angard Staffing Solutions Ltd and another, the Court of Appeal had to assess the extent of this right in the latest in a long-running dispute involving agency workers at the Royal Mail.

In this case, Mr Kocur, was an agency worker. He was employed by Angard Staffing Solutions Limited (‘Angard’). Angard was a wholly owned subsidiary of the Royal Mail and it supplied agency workers to the Royal Mail in a similar fashion to how most ‘temp agencies’ operate, namely, to provide workers to manage changing demands in staff to cover absences and increases in workload.

Angard supplied Mr Kocur to work at one of the Royal Mail’s mail centres. The practice at this mail centre when it came to job vacancies for permanent positions was to advertise the vacancies on a notice board. However, the vacancies were offered to direct employees of the Royal Mail and agency workers were not eligible to apply for them. The practice was slightly different if vacancies were advertised externally. In this situation, agency workers were allowed to apply for the vacancies, but they had to compete with other external job applicants.

In light of this approach, Mr Kocur brought an Employment Tribunal claim, in which he alleged that Regulation 13(1) AWR 2010 had been breached because he was not allowed to apply for the internal vacancies which were advertised on the mail centre’s notice board.

Mr Kocur won the case in the Employment Tribunal. In brief, the employment tribunal decided that, as well as the clear right for agency workers to receive information about vacancies, Regulation 13(1) AWR 2010 also included an implied right to for them to be able to apply for the vacancies.

Following an appeal to the Employment Appeal Tribunal (‘EAT’) by Angard and the Royal Mail, the EAT disagreed with the original decision of the Employment Tribunal. It decided that Regulation 13(1) AWR 2010 only gave agency workers the right to be notified about vacancies, but that there was no right to apply for internal vacancies on the same basis as direct employees of the Royal Mail.

As such, Mr Kocur then appealed to the Court of Appeal. He argued that the EAT had based its decision on a very restrictive interpretation of the AWR 2010 and the Temporary Agency Workers Directive 2008 (‘Directive’) – the European legislation which the AWR 2010 was intended to implement.

Ultimately, the Court of Appeal agreed with the EAT. The Court of Appeal stated that the literal reading of the AWR 2010 (as quoted above) and the Directive simply refer to a right to be notified of vacancies. The Court of Appeal then considered whether the purpose of the Directive was to give agency workers a right to apply for and be considered for vacancies. In a nutshell, the Court of Appeal decided that this was not the case, i.e., the limitation of the right to be notified was a conscious and deliberate policy decision. The Court of Appeal went on to support and reinforce the EAT’s view that the consequence of giving agency workers a right to apply for, and be considered for, vacancies with the hirer would be that the hirer would not be able to give preference to in-house candidates, which often occurs in (for example) redundancy exercises.

Comment

 From the perspective of organisations who use agency workers, this is a decision that will doubtlessly be welcomed by many, because they can give preferential treatment to internal candidates should they wish to do so. However, as mentioned earlier, it is also a useful reminder that Regulation 13(1) of the AWR 2010 does create an obligation for agency workers to be notified of relevant vacancies from the outset of their engagement.

Darren Tibble, Partner.