Agency workers do not have the right to apply and be considered for vacancies on the same terms as directly-recruited employees


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The Employment Appeal Tribunal (EAT) has considered various aspects of agency workers' rights under the Agency Workers Regulations 2010 (AWR 2010) in Angard Staffing Solutions Ltd and anor v Kocur and anor. 

Angard Staffing Solutions Ltd (ASS Ltd) is an employment agency which is a wholly owned subsidiary of Royal Mail.  It provides agency workers to Royal Mail so that it can react to fluctuations in demand for postal workers from day to day.  A number of agency workers employed by ASS Ltd and supplied to work in Royal Mail's Leeds Mail Centre complained of various breaches of the AWR 2010.  Among other things they complained of breaches of Regulation 5 which provides that an agency worker shall be entitled to the same basic working and employment conditions as they would have been entitled to had they been recruited by the hirer, provided that they have been performing their role for the hirer for 12 continuous weeks.

The EAT held that the right to be informed by the hirer of vacancies (Regulation 13) does not mean that the agency worker has a right to be entitled to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees.  It also held that there was no breach of Regulation 5 arising from the fact that the agency workers' shift lengths were 12 minutes longer than they would have been if the claimants had been recruited directly.  The disparity arose because the weekly working hours for direct recruits were 39 hours, while the agency workers were given shifts on the basis of a 40-hour week. 

When considering the issue of the payslips of the agency workers, which provided a less detailed breakdown of pay information than the payslips of direct employees, the EAT held that the Regulation 5 right to equal treatment in relation to "pay" did not extend to a right to the same pay information on payslips.  Equal treatment in relation to breaks was also considered.  The short breaks in each shift were scheduled in advance for direct employees, but not for agency workers.  The EAT held that the timing of breaks was not within the scope of Regulations because it did not concern "the duration of working time".

Take note:  Following the decision in Angard Staffing Solutions agency workers only have the right to be informed of vacancies.  There is no obligation on an employer to extend this right to an entitlement to apply for job vacancies and to be considered for such internal vacancies on the same terms as directly recruited employees.
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