Agency Workers: right to be informed of vacancies

The Court of Appeal has considered the interpretation of Regulation 13 of the Agency Workers Regulations 2010, which gives agency workers the right to be informed of any relevant vacancies in the hiring employer’s business.

Kocur v Angard Staffing Solutions Ltd and another [2022] EWCA Civ 189

Facts

The claimants were a group of agency workers who were employed by an employment agency (ASS Ltd) and supplied to work for the agency’s sole client, Royal Mail. Claims were issued against both ASS Ltd and Royal Mail alleging various breaches of the Agency Workers Regulations 2010 (AWR). An employment tribunal upheld some of the claims, including a breach of Regulation 13 AWR, which provides that an agency worker has the right to be informed of any relevant posts with the hirer, to give the agency worker the same opportunity as a comparable worker to find permanent employment. This decision was overturned on appeal to the Employment Appeal Tribunal, which held that Regulation 13 does not mean that an agency worker is entitled to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees (see our previous summary). The claimants appealed to the Court of Appeal.

Court of Appeal decision

The Court has dismissed the claimants’ appeal, upholding the EAT’s decision that there had been no breach of Regulation 13. It was satisfied that Article 6 of the EU Temporary Agency Workers Directive and Regulation 13, which implements Article 6 under the AWR, both only impose a right for agency workers to be notified about vacancies. The Directive does not require an equal right to apply and be considered for any vacancies, only for the information to be made available to agency workers. This meant that Royal Mail could limit applications for certain vacancies to internal candidates without breaching the AWR.

Consequences of this decision

This decision provides helpful confirmation by the Court of Appeal that employers can give preferential treatment to their own employees when recruiting to vacant positions. This will be relevant, for example, when employees are selected for redundancy and are placed in a redeployment pool. Employers must ensure that they provide the same information about permanent vacancies to agency workers as their direct employees, with the information equally accessible to both groups of workers. They do not need to ensure that agency workers can apply for those vacancies on the same terms as their own employees.

These articles are from the February 2022 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.