Does an agency worker have a right to apply for a job with their hirer?

The Court of Appeal in the case of Kocur v Angard Staffing Solutions Ltd and Royal Mail Group Limited has clarified whether an agency worker’s right to be informed of vacant posts at a hirer’s establishment extended to a right to apply and/or be considered for a vacancy on the same terms as those directly employed by the hirer.

Background

Mr Kocur (“the Claimant”) was employed by Angard Staffing Solutions (“the First Respondent”) as an agency worker. The First Respondent is a wholly owned subsidiary of Royal Mail Group Limited (“the Second Respondent”) and supplied agency workers to them on a flexible basis depending on the demand for postal workers.

The Claimant was supplied to the Second Respondent to work in the mail centre. Vacancies for permanent positions with the Second Respondent were advertised on a notice board. The vacancies were offered to employees of the Second Respondent first. Agency workers were not eligible to apply. Only once a job was advertised externally by the Second Respondent would agency workers be allowed to apply in competition with other external applicants.

The Claimant successfully complained to the Tribunal of various breaches of the Agency Worker Regulations 2010 (the AWR 2010), including that Regulation 13 of the AWR 2010 entitled him not only to be made aware of vacancies with hirers but had to include to an implicit right to allow him to apply for internal vacancies too. Without this, the Claimant argued, an agency worker is not given “the same opportunity” as direct employees of the Second Respondent. The Respondents appealed to the Employment Appeal Tribunal (EAT) arguing that this construction of Regulation 13 was incorrect and the right was limited to being informed of the relevant vacancies. The EAT agreed. The Claimant appealed to the Court of Appeal (“the Court”).

The Law

Regulation 13(1) of the AWR 2010 provides that, from day one of an assignment:

“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.”

This regulation derives from Article 6(1) of the Temporary Agency Workers Directive which contains a broadly comparable right to “be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment.”

Decision

The Court dismissed the Claimant’s appeal, finding that the right of an agency worker to be informed of vacant posts with the hirer did not extend to the right to apply for and be considered on the same basis for those posts as direct employees.

Succeeding in the appeal would have required the Claimant to prove that notification of vacancy equated to a right to apply and be considered, in considering the purpose of the Directive. There was nothing in the recitals or the provisions of the Directive which suggested that a right to apply was conferred. Instead, the drafting reflects a compromise between security for agency workers and flexibility for employers, providing a “real advantage” for agency workers in being informed of vacancies, but no more.

When considering implementing the Directive, it was open to Parliament to pass more generous provisions which could have allowed for a right to apply. However, the AWR 2010 does not confer such a right. Indeed, the Court noted that a consequence of interpreting a right to apply and be considered for vacancies would prevent, for example, an employer giving preference to existing employees in a redundancy situation. If Parliament had desired such an outcome, this would have been explicit in the AWR 2010.

Comment

The decision offers a welcome clarification that employers are only required to inform their agency staff of vacancies, even if they are not given an opportunity to apply for them. An employer may wish to consider agency staff applications at the same time and on the same basis as direct employees, but it is not strictly required to under the AWR 2010.

Case reference: Kocur v Angard Staffing Solutions Limited and Royal Mail Group Limited [2022] EWCA Civ 189

*This article is for information purposes only. You should seek specific legal advice on any legal issues.*