In a recent case, the Employment Appeal Tribunal found that under the Agency Workers Regulations 2010 the end-user company is only required to provide the agency worker with information about a vacant position and the agency worker does not have the right to equal or preferential treatment in relation to the recruitment process.
In the case of Coles v Ministry of Defence, Mr Coles was an agency worker supplied to a Ministry of Defence (MoD) organisation in Wales. In 2013, the organisation underwent a restructuring operation in which 530 permanent employees were at risk of redundancy and were placed into a redeployment pool and given ‘stage 1’ status. This meant that those employees had priority for any vacancies that arose at their level within the MoD organisation. The position of estate manager was advertised as a vacant position and this was effectively the role that Mr Coles had been undertaking. Mr Coles had access to the advert but did not apply for the position. The vacancy was filled by a stage 1 employee who had applied for the role. As a result, Mr Coles was informed that the MoD would no longer require his services and he was given notice that his assignment would end.
Mr Coles later complained that the MoD had breached Regulation 13 of the Agency Workers Regulations 2010 (AWR) by failing to allow him access to details of the vacancy and had denied him the opportunity of applying for the position. He argued that the priority treatment afforded to the stage 1 employees prevented him from receiving equal treatment in his working and employment conditions.
The Employment Appeal Tribunal (EAT) upheld the decision of the first instance Tribunal which had dismissed Mr Coles’ claim and declined to make a reference to the European Court of Justice on the interpretation of the Temporary Agency Worker Directive.
The EAT rejected Mr Coles’ argument that he was entitled to be considered for vacancies on an equal footing with permanent members of staff, ruling that the Directive does not lay down a general right for temporary agency workers to be treated on no less favourable terms that permanent employees. The EAT considered that the equal treatment right conferred on agency workers by the Directive was limited in scope to basic working conditions, such as hours and pay.
Agency workers are entitled under Regulation 13 of the AWR to be informed of vacancies such that they have the “same opportunity as a comparable worker” of finding permanent work with the employer. The EAT noted this right to information about vacancies is a valuable right in itself and found that the advertisement for the estate manager role would have been visible to Mr Coles had he chosen to look for it. The EAT held that if an employer wishes to give preference to permanent employees who are being redeployed over an agency worker then it is entitled to do so. The MoD had therefore been entitled to protect the employment of a permanent member of staff who was facing the risk of potential redundancy in preference to Mr Coles, a temporary agency worker.
The judgement in this case is a clear indicator of the limited protection afforded to agency workers in relation to recruitment to permanent positions under both the Directive and the AWR. The principle of equal treatment for such workers is limited in scope and does not afford them the same status as permanent staff in other areas such as recruitment. Employers are entitled to prioritise a permanent employee for a vacant role, particularly those at risk of redundancy, over that of an agency worker, even where that will result in the end of the agency worker’s assignment.
In a redundancy or re-structuring, agency workers should have no expectation that they will retain their roles at the expense of the employment of permanent staff. Indeed, in order to be able to defend claims for unfair dismissal employers would usually need to consider whether there are any roles currently filled by agency workers which could be offered to permanent employees at risk of redundancy. However, to avoid breaching the AWR, employers should be aware they must still ensure agency workers are informed of any vacancies and that agency workers have ready access to the relevant information about vacancies.