The Court of Appeal has held in the case of Kocur v Angard Staffing Solutions Limited and others that regulation 13(1) of the Agency Workers Regulations (the Regulations) goes no further than conferring a right on an agency worker to be notified of relevant vacant posts.
Regulation 13(1) of the Regulations specifies that during an assignment an agency worker has the right from day one to be informed by the hirer of any relevant vacant posts, and should be given the same opportunity as a comparable worker to find permanent employment with the hirer.
Mr Kocur was employed by Angard Staffing Solutions Limited. Angard supplied agency workers on a flexible basis exclusively to Royal Mail to enable them to respond to fluctuations in demand for postal workers. Mr Kocur was supplied by Angard to Royal Mail to work in a mail centre. Under an agreement between Royal Mail and the Communication Workers Union, existing Royal Mail employees had priority for any permanent vacancies. Agency workers were only eligible to apply if the vacancies were advertised externally in competition with other external applicants. Mr Kocur claimed that this breached his rights under the Regulations.
The employment tribunal upheld his complaint, but this was appealed to the EAT. The EAT distinguished the relationship between hirers and agency workers from the relationship between hirers and direct recruits. It 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 intend to treat agency workers on an equal footing to permanent employees. On a literal reading of the Directive, agency workers have a right to be notified of vacancies in the hirer organisation. The Directive was not intended to prioritise the interests of temporary workers over those of permanent employees or hirers. The Directive was a balance between a variety of competing demands of worker security and employer flexibility.
A right to be notified of vacancies conferred some advantages on agency workers, particularly in comparison with external candidates for jobs, because they knew the same information about the vacancies as internal candidates. If the European Council and Parliament had intended to create a right to apply for vacancies, they would have said so.
What this means for employers
The decision provides helpful clarification for employers that the agency worker right to be notified under regulation 13 does not extend to the right to apply, and be considered, for internal vacancies on the same terms as internal employees of the hirer.
For more information, please contact a member of the Employment Team.