The Agency Worker Regulations 2010 ("AWR") created new rights for agency workers who are supplied by temporary work agencies ("TWAs") to do temporary work for hirers. Amongst other things they provide that, after a 12 week qualifying period, agency workers should have the same basic working and employment conditions as if they had been directly recruited by the hirer.
The AWR also create some rights which apply from day one of an assignment including the right to information about a hirer's job vacancies. Regulation 13 provides that "an agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer".
The EAT has recently considered the extent of this obligation and, in particular, whether it gives agency workers the right to equal status with comparable permanent employees in being considered for a vacancy.
The Claimant was a temporary agency worker, working as a technical liaison officer for the Ministry of Defence, supplied by a TWA. Substantial restructuring within the MOD in 2013 led to 530 permanent employees being placed in a redeployment pool and given priority over other applicants for any vacant posts within their department at their grade. A vacant post arose which was effectively the same role that the Claimant had been carrying out. The post was advertised and visible on the Civil Service Jobs website for all internal candidates who wished to apply for it, including the Claimant. However, he didn't see the advert and failed to apply. A candidate from the redeployment pool was appointed which meant that the Claimant's services were no longer needed and his assignment ceased. The Claimant bought a claim alleging that by not giving him access to details about the vacant position and denying him the opportunity to apply for it the MOD had breached Regulation 13 of the AWR as well as provisions of the relevant European Directive (which was applicable because the claim was against the MoD). The ET dismissed his claim and he appealed.
The Claimant's appeal was also dismissed. The AWR allow temporary agency staff the right to information regarding vacancies with the hirer at the same time as directly recruited employees. The purpose of this is to give them the same chance as other workers to find permanent employment. Contrary to the Claimant's arguments however, it was held that the AWR do not go so far as to address the terms on which recruitment should be offered and do not extend to a right to be considered for any vacancies on an equal footing with permanent employees. Outside of the right to comparable defined basic working and employment conditions after 12 weeks, the AWR and the Directive do not establish a general right to be treated no less favourably than comparable employees. Consequently, the requirement in Regulation 13 to the agency worker having the "same opportunity" as permanent employees does not provide a right for agency workers to be interviewed or considered for any vacancy. If an employer wishes to give preference to redeployed permanent staff they are entitled to do so. The EAT declined to refer this issue up to the European Court of Justice on the basis that it was simply a straightforward reading of the legislation.
Temporary agency work is a flexible form of working and extending the rights of such workers can cut across this principle. This recent decision helpfully confirms for hirers that the emphasis of Regulation 13 is the equal provision of information regarding vacancies. It does not extend to equality in the job application process. This means that so long as the hirer brings to the attention of all agency workers any vacancies, to the same extent that all other permanent employees are also made aware of them, it will have fulfilled its obligation. This will remain the case even if the hirer goes on to show preferential treatment to their permanent staff in recruiting for the positions available. Hirers can choose how to publicise vacancies whether it is in the intranet/ internet or on a notice board but they should ensure that any agency workers know where and how to access this (for example, as part of an induction pack).
Specific reference was also made to redundancy situations. It was found that where there is a risk of redundancies in a business, it is a "fundamental employment practice" to give preference to permanent staff that are being redeployed and that hirers are entitled to protect the interests of such employees before the interests of any temporary agency staff.
It should also be noted that the judge here (Judge Langstaff, the President of the EAT) doubted whether the BIS Guidance on the AWR was "wholly accurate" where it suggests that the right to be told of a vacancy would not apply in the context of a genuine head count freeze. He suggests that he can see no reason why this would be the case and in his view agency workers should be told of vacancies in such a situation. Consequently, hirers should err on the side of caution and should also advertise such vacancies to agency staff in such circumstances. In practice, though, it would be entirely open to then give preference to permanent staff being redeployed in the recruitment process.
For more information, please contact the employment team at Foot Anstey.