Employment Review: September 2015 - Agency Workers - right to be informed of, not considered for, permanent employment vacancies with hirer

The Employment Appeal Tribunal (EAT) has upheld a tribunal's decision that temporary agency workers have only a right to be informed of relevant vacant posts in the permanent workforce of a hirer, and are not entitled to be afforded equal status with existing direct employees of the hirer in being considered for a relevant vacancy

Background

Basic working and employment conditions for temporary agency workers are no less favourable than if they had been recruited direct by the hirer. Thicovers conditions such as remuneration, paid holiday, working hours, overtime, maternity and anti-discrimination provisions etc. (Article 5)

There is equal access for temporary workers to employment, collective facilities and vocational training (Article 6).

Penalties are imposed on temporary work agencies and hirers for non-compliance with the Temporary Workers Directive (Article 10).

The Agency Workers Regulations 2010 (“AWR”) is the statutory instrument in the UK which implements the Temporary Workers Directive.

Facts

Merely conferred to agency workers a right to information as to vacancies (so as to provide an opportunity for agency workers to apply);

Permitted an employer to give priority to workers who had been placed in a redeployment pool; 

and Did not require employers to displace exist in permanent workers by offering temporary agency workers the right to compete with them for a permanent post.

EAT Decision

There is no general right for temporary agency workers to be treated no less favourably than a direct employee;

instead, the principle of equal treatment is confined to working time and pay.

The purpose of Regulation 13(1) of AWR is to give temporary agency workers the ‘same opportunity’ as other workers in respect of receipt of information of a vacancy and does not confer any additional right to, for example, have an interview, be considered for employment etc.

There is no basis in principle for protecting the job of a temporary agency worker (which by definition is to plug a gap, and which being temporary lacks the security enjoyed by those in permanent employment) in preference to that of an existing permanent worker.

Comment Reference: Coles v Ministry of Defence UKEAT/0403/14, 31 July 2015