Agency workers, vacancies and directly recruited employees


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The Court of Appeal has held in Kocur v Angard Staffing Solutions Ltd and anor that Regulation 13 of the Agency Workers Regulations 2010 (AWR 2010) (the right to be informed by the hirer of any relevant vacancies) does not give agency workers the right to be able to apply, and be considered for vacancies on the same terms as the hirer's directly recruited employees.

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 the tribunal found that there had been a breach of Regulation 13, which provides that agency workers have the right to be informed by the hirer of vacancies.

The Employment Appeal Tribunal 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. The right is a right to be notified of the vacancies on the same basis as directly recruited employees.

The Court of Appeal dismissed the appeal. It looked at the purpose of Article 6 of the EU Temporary Agency Workers Directive which is implemented by Regulation 13 and concluded that the purpose was "to give [agency workers] the same opportunity as other workers in that undertaking to find permanent employment". As both Regulation 13 and Article 6 impose only a right to notification, the question was whether the Directive's purpose was to equate notification with a right to apply and be considered; the Court concluded that it was not.

Take note: The Court of Appeal's decision will come as a relief to hirers of agency workers as it confirms that there's no need to consider agency workers for vacancies on the same basis as employees. The duty under Regulation 13 AWR 2010 is only to notify and provide agency workers with information about vacancies on the same basis as the hirer would do for directly recruited employees.

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