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Agency Worker Rights: How far do employers have to go in relation to agency workers and permanent vacancies?

View profile for Clare Gilroy-Scott
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Organisations using temporary workers supplied through temporary work agencies will no doubt be familiar with the requirements of the Agency Workers Regulations 2010 (AWR).  As well as providing for equal treatment for agency workers as against comparable permanent employees in respect of certain basic working and employment conditions, the AWR also gave agency workers the right to be informed of vacancies in the organisation in which they are providing services “to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer” (Reg 13, AWR).

The extent to which hirers have to provide the “same opportunity” was the subject of the case Coles v Ministry of Defence which came before the Employment Appeal Tribunal (EAT) in July 2015.  The EAT concluded that the Reg 13 right was simply a right to “be informed of vacant posts”.

Mr Coles had been working as a technical liaison officer, supplied by Building Recruitment Limited to, ultimately, the Defence Housing Executive (DHE) of the Ministry of Defence (MoD).  Following a restructure at the DHE in 2013, some 530 directly engaged employees were placed into a redeployment pool, to be given priority consideration for vacancies at their existing grade.  The post which Mr Coles had been filling was advertised and would have been visible to any internal DHE candidate who wished to be considered for it, and would have been visible to the Claimant had he chosen to look for it.  The Claimant did not apply for the post although it was found that he had “ready access to the advertisement”.  The post was filled by an individual who was in the redeployment pool and therefore in a “priority category” and, as a result, there was no longer a need for the services of Mr Coles.  His assignment was terminated.

Mr Coles had argued in the employment tribunal that the MoD was in breach of its obligations under Reg 13 of the AWR and also Articles 5 and 6 of the Temporary Agency Worker Directive (2008/14/EC), the EU legislation to which the AWR was intended to give effect.  This was on the basis that the MoD had failed to allow him access to details of the vacancy and denied him the opportunity to apply for the position which he had been occupying on a temporary basis as an agency worker because existing MoD employees whose employment was at risk following a restructuring, would have preference.  The employment tribunal rejected the arguments of Mr Coles that the AWR and the Directive conferred the right to be given information as to the vacancies and also the right to be considered for the vacancy on an equal footing with existing employees.

The conclusion of the EAT was that the Directive gave agency workers a valuable right to information about vacant posts but that there was nothing in the legislation about the terms on which there should be recruitment for any post.  The upshot being that if an employer wishes to “give preference” to permanent employees being redeployed, the employer will be “entitled to do so” without breaking any duty imposed by the AWR or the Directive, notwithstanding that an agency worker would also lose his job.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.