Agency Workers & Client Vacancies
Key Contact: Claire Knowles
Author: Juliette Franklin
Agency workers’ right to be notified of vacancies does not extend to a right to apply and be considered on the same terms as direct.
In Kocur v Angard Staffing Solutions Ltd and another, the Court of Appeal held that the right of an agency worker to be notified of vacancies with a hirer as provided by Regulation 13 of the Agency Workers Regulations 2010 (“AWR 2010”) does not extend to a right to apply and/or be considered for the notified post. The AWR 2010 are intended to give effect to the Temporary Agency Workers Directive (“the Directive”). The AWR 2010 must, as far as is possible, be read in a way which gives effect to the purpose of the Directive.
Mr Kocur, an agency worker, was employed by Angard Staffing Solutions Limited (Angard), a wholly owned subsidiary of Royal Mail Group Limited (Royal Mail). Angard supplied agency workers on a flexible basis exclusively to Royal Mail to enable them to respond to fluctuations in demand.
Mr Kocur was supplied by Angard to Royal Mail to work in a mail centre. Vacancies for permanent positions at the mail centre were put on a notice board and offered first to direct employees of Royal Mail. Agency workers were not eligible to apply. If vacancies were advertised externally, agency workers were entitled to apply, in competition with other external applicants.
Mr Kocur complained to an employment tribunal that the AWR 2010 had been breached because he was ineligible to apply for the internal vacancies notified on the notice board.
The employment tribunal held that the express right to receive information in the AWR 2010 extended to an implicit right to apply for relevant vacant posts. The EAT disagreed, holding that the right was only to be notified of the vacancies on the same basis and with the same level of information as directly recruited employees. There was no right to apply and be considered for internal vacancies on the same terms as direct employees. As such, the obligation was satisfied if the temporary agency workers were informed of the relevant vacancies, even if they were not given an opportunity to apply for them.
Mr Kocur appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. The Court of Appeal held that, read literally, the AWR 2010 and the Directive imposed an operative duty of notification only, with neither addressing what happens after notification. The court concluded that the intention of the legislation was for there to be a pragmatic compromise between the competing objectives of security of employment for agency workers and flexibility for both workers and employers – the legislation doesn’t purport to be more than it expressly provides for, namely a limited right to information. The court held that a right to be notified is a real advantage as, giving agency workers the same information about vacancies as is given to internal candidates, means that agency workers might have more advance or more direct notice if the vacancy is also advertised to external candidates.
The Court of Appeal’s decision is the latest in long-running litigation involving agency workers assigned to Royal Mail. The underlying issue was the extent to which temporary agency workers are entitled to non-discriminatory parity of treatment with directly employed workers in relation to internal vacancies.
The decision reflects the Directive’s recognition that agency workers are not, in all respects, comparable with permanent workers. Hirers of agency workers will no doubt welcome the court’s conclusion not to expand the right to notification of vacancies wider than its literal interpretation.