The Agency Workers Regulations 2010 (AWR) are derived from EU law. They aim to strike a balance between protecting agency workers and preserving the benefits of flexibility that using an agency provides to both businesses and workers. The AWR contain anti-discrimination provisions. Agency workers must be given the same basic terms and conditions of employment as direct recruits when they have worked for a hirer for 12 weeks. Regulation 13 gives agency workers the ‘day 1’ right to be told by the hirer about any relevant vacancies, with the aim of giving agency workers the same opportunity as direct recruits to find permanent employment within the business. The information can be given in a general announcement in a suitable place in the hirer’s business.
In Kocur v Angard Staffing Solutions, the employee was employed by Angard, a wholly owned subsidiary of Royal Mail. Angard supplied agency workers on a flexible basis to meet the fluctuating demands of the postal service for workers. The employee worked in a mail centre. Vacancies for permanent jobs were put on a notice board but offered to direct employees first. Agency workers could not apply. If the jobs were advertised externally, then agency workers could apply along with other external applicants. The employee brought a claim saying this breached the AWR.
The employment tribunal and the EAT disagreed. The right was to be informed of the vacancies, not to apply for them or be considered for them. The Court of Appeal agreed. They looked in detail at the EU law underpinning the AWR. The Court of Appeal was clear that the wording used could not be stretched to mean what the employee contended. The right to only be informed of vacancies recognises that the law is a compromise between competing rights. It isn’t a completely hollow right – it means agency workers have advance or direct notice if a vacancy is advertised externally. Direct recruits and agency workers are not comparable in all ways – the right to parity is limited. To require an employer to allow applications from agency workers for internal vacancies would cause huge upheaval in redundancy and reorganisations where preference for internal candidates is a commonly used tool. Had lawmakers intended to disrupt common practice to that extent, they would have made it plain.
This decision makes it clear that there is a limit to the parity of treatment to which agency workers are entitled. Employers who use agency workers will be relieved that the law has its limits. Employers must simply ensure that information about vacancies is communicated to agency workers and direct recruits on the same basis.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539