In the recent case of Kocur v Angard Staffing Solutions Ltd and another, the Court of Appeal held that the right for agency workers to be notified of any vacancies with the hirer pursuant to Regulation 13(1) of the Agency Workers Regulations 2010 (the AWR) does not extend to a right to apply and/or to be considered for the notified post on the same terms as direct recruits.
Mr Kocur was an agency worker for the purposes of the AWR and was employed by Angard Staff Solutions Limited (Angard), a wholly owned subsidiary of Royal Mail Group Ltd (Royal Mail). Angard provides agency workers exclusively to Royal Mail and Mr Kocur was supplied to Royal Mail to work in a mail centre. When vacancies for permanent positions at the mail centre became available, they would be displayed on the notice board in the mail centre and offered to permanent employees first. Agency workers were not eligible to apply for these posts. Agency workers were only permitted to apply for any vacancy once the relevant vacancy was advertised externally, at which point the agency worker would be required to compete against other external applicants.
Mr Kocur argued that this practice was in breach Regulation 13 of the AWR because he was ineligible to apply for the listed vacancies. He argued that for Regulation 13 of the AWR to be construed correctly, an agency worker must have (i) a right to be notified of vacancies; and (ii) a right to apply and be considered for vacancies because without the latter, the former would be meaningless.
The Employment Tribunal held that the express right to receive details of any vacancies extended to an implicit right to apply and be considered for relevant vacant posts. However, the EAT disagreed. The EAT held that the right was only to be notified of any vacancy, not to apply and/or to be considered for the vacancy. Therefore, the EAT considered that this obligation was satisfied if agency workers were informed of relevant vacancies, even if they were not given the opportunity to apply for them.
Court of Appeal decision
The Court of Appeal dismissed the appeal, finding that the EAT had interpreted Regulation 13 of the AWR correctly. It held that the AWR does not confer on any agency worker a right which goes beyond the right to be notified of a vacancy.
The Court of Appeal’s decision is the latest in a long-running case involving agency workers assigned to Royal Mail. The underlying issue was the extent to which temporary agency workers are entitled to non-discriminatory parity of treatment with directly employed workers in relation to applying for internal vacancies. This decision confirms that agency workers are not comparable with permanent workers in this regard, which will no doubt be welcomed by hirers of agency workers.