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22 February 2022
Agency workers in the UK have a right to be informed about permanent job vacancies but do not automatically have the right to apply, and be considered for, internal vacancies on the same terms as directly employed employees, a Court of Appeal ruled.
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 issue for the Court of Appeal was whether a right to be informed about vacancies extended to a right to apply for relevant vacant job postings. The Court found that it did not.
Regulation 13 (1) of Agency Workers Regulations provides that an agency worker has, during an assignment, the right to be informed by the hirer of any relevant vacant posts with the hirer.
The Court of Appeals held that, properly construed in the light of the Temporary Agency Workers Directive, the right was only to be notified of the vacancies on the same basis as directly recruited employees coupled to a right to be given the same level of information about the vacancies as the directly-recruited employees.
However, there was no right to apply, and be considered for, internal vacancies on the same terms as directly employed employees. The obligation was therefore satisfied if temporary agency workers were informed of the relevant vacancies, even if they were not given the opportunity to apply for them, the Court found.
Last year, the UK’s Employment Appeal Tribunal ruled that agency workers are not entitled to apply for and be considered for internal vacancies on the same terms as employees. The claims had been brought by agency workers in the case of Angard Staffing Solutions Ltd and Royal Mail v Dominik Kocur.
This latest appeal, brought forth by Kocur, confirms that agency workers have the right to be informed about vacancies but are not automatically entitled to apply for and be considered for the permanent job vacancies.
Kocur was employed by Angard, an employment agency which is a wholly owned subsidiary of Royal Mail. It provides agency workers exclusively to Royal Mail in order to assist Royal Mail to react to day to day fluctuations in demand for postal workers. As a subsidiary Angard is under the control of Royal Mail which determines the pay and conditions of employment for agency workers employed by Angard.
The appellant was supplied by Angard to Royal Mail to work in the Leeds Mail Centre in the role of an operational post grade. When vacancies for permanent positions for particular shifts or duties in relation to sorting work at the Leeds Mail Office became available, they were put up on the notice board and offered first to OPG operatives who were already in permanent posts and to those in a reserve class of OPG operatives.
Agency workers were not eligible to apply for the posts. They could however apply for vacancies when they were advertised externally, and when they did so, they were in competition with all other external applicants.
In the judgement, Lord Justice Green stated, “In my judgment the EAT correctly interpreted Regulation 13. I would dismiss the appeal.
In coming to this conclusion, the Employment Appeal Tribunal followed and approved of a judgment of Langstaff J in Coles v Ministry of Defence [2016] ICR 55 (“Coles”).
In that decision, Langstaff J held: “The purpose of the Directive is to give temporary agency workers the same chance as other workers in the undertaking of the end user to find permanent employment with that end user. It has nothing to say about the terms upon which there should be recruitment for any post. If an employer wishes to give preference to those being redeployed, perhaps to satisfy his obligations to them as his permanent employees, he is entitled to do so, and will not in doing so break any duty imposed by the Regulations or the Directive.”
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