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

It is a requirement under EU law (Directive 2008/104/EC on temporary agency work (the “Temporary Workers Directive”)) that:

• Basic working and employment conditions for temporary agency workers are no less favourable than if they had been recruited direct by the hirer. This
  covers 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).

Regulation 13 of the AWR provides: “Rights of agency workers in relation to access to employment (1) 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. (4) For the purposes of paragraph (1) the hirer may inform the agency worker by a general announcement in a suitable place in the hirer’s establishment.”

Facts

The claimant (Mr Coles) was an agency worker supplied by a recruitment company to DHE, an establishment that was part of the Ministry of Defence. In 2013, DHE decided to restructure and 530 of its direct employees were placed in a redeployment pool and were to be given priority consideration (over other applicants) for vacancies in the Ministry of Defence at their existing grade within their department.

A vacancy was advertised for a post in which Mr Coles had been working, which would have been visible to any candidate internal to DHE who wished to be considered for it, and would have been visible to the claimant too (as he had ready access to the advertisement).

A permanent employee of the Ministry, who was in the priority category and in the redeployment pool consequent upon the restructure, applied for the post and was appointed to it. The claimant did not apply.

The claimant argued that the Respondent was in breach of its obligations under Regulation 13 of the AWR and Articles 5 and 6 of the Temporary Agency Worker Directive by failing to allow him access to details of the vacancy and by denying him the opportunity to apply for the position he had temporarily been occupying as an agency worker, when he was told of the post but that existing permanent employees of the Ministry would have preference.

The Employment Tribunal (ET) rejected the complaint on the basis that the Temporary Workers Directive and the AWR:

• 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 existing
  permanent workers by offering temporary agency workers the right to compete with them for a permanent post.

EAT Decision

The claimant appealed the ET’s decision. The EAT dismissed the claimant’s appeal and made the following findings:

• 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

This case highlights the importance of providing agency workers with the same rights to be informed of vacancies (of permanent employment) as comparable workers.

However, whilst the Temporary Workers Directive and the AWR provides agency workers with protection in respect of equal basic working and employment conditions to comparable employees, this case is an important reminder that the principle of equal treatment does not extend to give agency workers the same rights as comparable permanent employees in all aspects of the employment relationship.

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