Employment law case update

Employment appeal tribunal (EAT) rules on agency workers’ right to be informed of vacancies in end-user company.

Under Regulation 13 of the Agency Workers Regulations 2010 (Regulation 13), agency workers have the right to be informed of employment vacancies in the end-user company for which they work. In the recent case of Coles v Ministry of Defence, the question arose: does Regulation 13 prevent the company giving preference for vacant posts to permanent employees in need of redeployment or is Regulation 13 right is simply a right to information?

The EAT found that Regulation 13 is a right to information only and does not grant the agency worker any preferential position in relation to opportunities for permanent employment.

Background and decision

BRC Ltd supplied estates management personnel, including the Claimant, to a Ministry of Defence (MoD) organisation in Wales. In 2013, the MoD decided to implement a substantial restructure, resulting in 530 permanent employees being placed into a redeployment pool. Those in the pool were given priority for vacancies at their existing grade. In May 2013, a post at the site where the Claimant was working became available. It was advertised internally and the Claimant would have been able to see the advertisement, had he looked for it, but he did not apply. An employee in the prioritised redeployment pool applied and was appointed. As a result, the MoD had no further need for the Claimant’s services and terminated his assignment. The Claimant complained to an Employment Tribunal that, in breach of Regulation 13, the MoD had failed to allow him access to details of the vacancy and had denied him the opportunity of applying.

The Employment Tribunal rejected the claim. It did not accept the Claimant’s main argument that he was entitled not only to information as to vacancies but also to the right to be considered for such vacancies on an equal footing with permanent employees. The Claimant appealed to the EAT.

The EAT dismissed the appeal, holding that Article 6 of the Temporary Agency Worker Directive (Article 6) (the European Directive which Regulation 13 implements) is clearly restricted to a right to information. Although Article 6 states that agency workers must be informed of vacancies so that they have ‘the same opportunity as other workers in that undertaking to find permanent employment’, this does not mean that they must be able to apply for the vacancies on an equal footing. ‘Same opportunity’ means simply that the information must be provided in just as useful a form, and at just as convenient a time, to the agency worker as it is to other workers. The information is provided not to secure further employment but to help towards finding it – Article 6 says nothing about the terms on which the employment might be offered.

Comment

It is helpful to companies engaging agency workers that a literal interpretation of Article 6 and Regulation 13 has been applied with the result of not imposing a more onerous obligation than the wording suggests. It is also helpful to have clarity that, when considering candidates for vacancies, end users can select a permanent employee (with the required qualifications) over an agency worker already working for the hirer, provided that the agency worker has not been disadvantaged in their search for permanent employment.

In its judgment, the EAT pointed out that the guidance issued by the Department for Business, Innovation and Skills appears to be inaccurate on Regulation 13 because it suggests that the right to be told of a vacancy would not apply in the context of a genuine ‘headcount freeze’ but the EAT could see no reason why this should be so.

This update is for general guidance only. Legal advice should be sought before taking action in relation to specific matters.  Visit the employment page of our website for more information about our employment law services.