No right for agency workers to apply for internal vacancies

Agency workers’ rights to apply and be considered for internal positions have been questioned in recent months, with a case going as far as the Court of Appeal to provide clarity on workers’ entitlements and employers’ obligations. The Agency Worker Regulations (2010) are based on law set from the EU in the Temporary Agency Workers Directive; they aim to ensure the fair treatment of agency workers from all associated parties, including the agency and the end-user.

The Regulations set out, amongst others, two key provisions: the right for an agency worker, during an assignment, to be informed by the hirer of any relevant vacant posts with the hirer and to give the agency worker the same opportunity as a comparable internal worker to find permanent employment with the hirer. They also outline the right for agency workers to be given the same basic working and employment conditions for doing the same job as anyone who was recruited directly by the hirer.

In the case of Kocur v Angard Staffing Solutions, an agency supplied workers to the Royal Mail. Two agency workers raised a claim to the employment tribunal (ET) alleging the organisation had breached Agency Worker Regulations after they were informed that they were not eligible to apply for internal vacancies, unless and until they were advertised externally. The ET agreed with the employee and upheld the breach claim. However, the respondent appealed this decision, arguing that the tribunal had misinterpreted the wording of the Regulations.

The case was therefore passed to the Employment Appeal Tribunal (EAT). Here, the EAT agreed with the respondent, holding that whilst agency workers do have the right to be informed about any internal job vacancies with the end-user, they have no rights or entitlements to apply for and be considered for them, in the same way a direct recruit would be. The key aim of the regulation was to allow agency workers to be given the same information as comparable internal workers, which puts them in a more advantageous position than is available for external job applicants. As such, it was deemed this information was valuable, even if the hirer refused them permission to apply for the role.

The claimant then appealed the case to the Court of Appeal, arguing that the right to be told of internal vacancies with the hirer implicitly included the right to also apply for these jobs. However, this concept was rejected. The Court of Appeal referenced the Directive from which the Regulations are based on and concluded that, when the Directive was made, there was no indication that it intended to treat permanent and temporary workers the same in every aspect. Doing so would take away the flexibility employers enjoyed from engaging agency staff. Instead, the Directive highlights that temporary agency workers are not comparable to direct recruits on the hirer in all respects.

Since the judgement was made from the Court of Appeal, the outcome of it is binding, meaning employers should closely adhere to the decision. This will likely be welcomed news for employers, who don’t have to worry about having to interview, or consider an application from, an agency worker for internal vacancies.

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