UK – Agency workers not entitled to apply for and be considered for internal vacancies on the same terms as employees, tribunal rules

08 January 2021

Last month, the UK’s Employment Appeal Tribunal ruled on a range of claims brought by agency workers in the long-running case of Angard Staffing Solutions Ltd and anor v Kocur and ano.

The long-running case which launched in 2019 when a group of 50 agency workers filed a claim in the Leeds Employment Tribunal against Angard Staffing Solutions Ltd and Royal Mail over unequal treatment, saw Royal Mail and Angard Staffing lose their appeal against a decision regarding the status of agency workers.

Under the Agency Workers Regulations 2010, agency workers have a right to no less favourable treatment compared to employees who are employed by the end user (in this case the Royal Mail).

The claimants had complained of breaches of Regulation 5 of the Agency Workers Regulations 2010, which gives agency workers the right to the same basic working and employment conditions as they would be entitled to as an employee of the hirer; and a breach of Regulation 13, which gives agency workers the right to be informed of any relevant vacant posts with the hirer.

On Regulation 13, the Tribunal held that the right to be informed by the hirer of vacancies does not mean that agency workers are entitled to apply for and be considered for internal vacancies on the same terms as employees of the hirer. The Tribunal held that the right under Regulation 13 is to be notified of vacancies and be given the same level of information as internal employees or direct recruits, not an equal eligibility to apply. Therefore, Angard’s and Royal Mail’s appeal on this issue was allowed.

The Employment Appeal Tribunal also held that there was no breach of Regulation 5 arising from the fact that the agency workers’ shift lengths were 12 minutes longer than they would have been if the claimants were recruited directly.

Additionally, the Employment Appeal Tribunal held that the respondents were not in breach of Regulation 5 by providing their direct recruits with a 30-minute weekly training session, while agency workers were expected to continue working. They stated there was nothing in the AWR or EU Agency Workers Directive to suggest there must be equality of treatment in relation to the content of working time.

The EAT also held there were no breaches of the equal treatment provisions in relation to pay, entitlement to breaks or overtime by Angard and Royal Mail giving direct employees first refusal in relation to overtime opportunities.

In SIA’s report, Europe Legal Update Q4 2020, by Fiona Coombe, Director, Legal & Regulatory research, it states, “This will not be the last decision in this case with the outstanding issue of a pay rise to be dealt with, but the judgement together with earlier rulings, has provided much-needed clarification of the meaning of the AWR.”

Angard Staffing was established in 2011 and is the dedicated recruitment partner for Royal Mail. While the business is part of Royal Mail, it has been outsourced to Reed Specialist Recruitment to manage.

SIA’s Europe Legal Update Q4 2020 rounds up the legal developments affecting the workforce solutions ecosystem across Europe in Q4 2020.