Balancing act – agency worker had a right to be informed of vacancies, not to apply | Hogan Lovells

Under the Agency Workers Regulations 2010 (the Regulations), agency workers have the right to be informed of relevant vacant posts with a hirer for which they are working, to give them “the same opportunity as a comparable worker to find permanent employment with the hirer”. The issue for the Court of Appeal was whether a right to be informed about vacancies necessarily implied a right to apply for them. It did not.

What happened

Mr Kocur was an agency worker at Royal Mail. Under an agreement between Royal Mail and the Communication Workers Union, existing Royal Mail employees had priority for any permanent vacancies that arose. Although agency workers were notified of such vacancies, they were only entitled to apply for them if the vacancies were advertised externally. 

Mr Kocur claimed that this breached his rights under the Regulations. His right to be notified of vacancies only had any meaning if he could apply for them on the same basis as an existing Royal Mail employee. This reflected the intention of the underlying Agency Workers Directive (the Directive). Although the employment tribunal upheld his complaint, the EAT found that the right to be notified did not imply a right to be entitled to apply for vacancies and Mr Kocur appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT. The Directive does not seek to treat agency workers on all fours with permanent employees. On a literal reading of the Directive, agency workers have a right to be notified of vacancies in the hirer organisation. Mr Kocur’s argument that agency workers must also be entitled to apply for vacancies presupposed that the Directive was intended to prioritise the interests of temporary workers over those of permanent employees or hirers. In fact, the Directive was a pragmatic balance between a variety of competing interests, such as the need for security for temporary workers on one hand and the need for flexibility, including flexibility for hirers, on the other. 

The fact that a right could have been more generous did not mean that it had no value. A right to be notified of vacancies conferred some advantages on agency workers, particularly in comparison with external candidates for jobs, because it gave them the same information about the vacancies that internal candidates enjoyed. If the European Council and Parliament had intended to create a right to apply for vacancies, they would have said so.