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What rights do agency workers have to be considered for vacancies?

It has been a busy month for agency workers.

Widely publicised has been P&O ferries’ replacing its own employees with foreign agency workers. Earlier this month the Court of Appeal was also considering agency workers, specifically whether agency workers have the right to be informed of vacancies, or more than that, actually considered for placement into a vacant role.

The Court of Appeal has agreed with a previous EAT decision confirming that the Agency Worker Regulations 2010 should be interpreted narrowly: they only provide a right for agency workers to be informed of vacancies not considered.

The law

The Agency Worker Regulations (‘the Regulations’) provide agency workers with various rights, including:

  1. the right to the same basic working and employment conditions as they would be entitled to as an employee of the hirer; and
  2. the right to be informed of any relevant vacant posts with the hirer.

Facts

Angard Staffing Solutions Limited (ASS) is an employment agency and a wholly owned subsidiary of Royal Mail. ASS provided agency workers to Royal Mail. Agency workers employed by ASS, but who were supplied to work in one of Royal Mail’s centres, complained that both ASS and Royal Mail had breached the Regulations, including:

  1. breach of the agency workers’ entitlement to the same basic working and employment conditions to which they would be entitled for doing the same job as if had they been recruited by Royal Mail; and
  2. breach of the Agency Workers’ entitlement to be informed by Royal Mail of any relevant vacant posts.

The agency workers succeeded in two of five of their claims, against which ASS and Royal Mail appealed. The workers also appealed against some of the Tribunal’s findings towards them.

In 2021, the Employment Appeal Tribunal (EAT) found that the right to be informed of vacancies by the hirer did not mean that the agency workers had a right to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees. The right was limited to the Agency Workers being notified of the vacancies on the same basis of directly-recruited employees. The case was further appealed to the Court of Appeal.

Decision

The Court of Appeal upheld the EAT’s decision and confirmed that the Regulations should be interpreted narrowly. The Court said that the Regulations only entitle agency workers to be informed of job vacancies on the same footing as directly recruited employees. However, rights under the Regulations do not extend as far as entitling agency workers to be considered for vacancies equally with directly recruited employees.

In coming to its decision, the Court of Appeal noted that the Regulations (read in the light of the Directive from which they derive) did not support a wider interpretation. The protections afforded to agency workers under the Regulations are minimal, and there is no scope to find they include a right to apply for a vacancy.

Comment

The Court of Appeal’s decision will be welcomed by all organisations which hire agency staff, as the Court has endorsed the EAT’s narrow approach to interpreting the Regulations.

This means that agency staff are not entitled to be treated equally with direct employees in respect of internal vacancies. The only requirement for hirers under the Regulations, in respect of vacant roles, is to keep agency staff updated and informed.

The Court felt that to interpret the Regulations otherwise would go beyond what Parliament intended and may prevent hirers from giving preference to directly employed staff when selecting candidates. That is of course not to say that an agency worker cannot be given a vacant role but that should not be in favour of a potentially redundant employee for example who should be considered in preference to an agency work for any vacancy. This is perhaps consistent also with the widely held public opinion that agency workers should not have been favoured over the P&O employees.

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