Agency workers have no right to apply for vacancy

Case 1: the facts

Regulation 13(1) of the Agency Workers Regulations 2010 (AWR) gives temporary agency workers the right to be informed by the hirer of relevant vacant posts with the hirer “to give the agency worker the same opportunity as a comparable employee of the hirer to find permanent employment with the hirer”.

Mr Kocur and his fellow claimants worked in the Royal Mail’s Leeds mail centre but were employed by Angard, a wholly owned subsidiary of Royal Mail which only supplied staff exclusively to Royal Mail. Royal Mail had a collective agreement with the recognised union, the Communication Workers Union (CWU), that Royal Mail employees would be given priority rights to apply for certain permanent sorting office vacancies.

Permanent vacancies at Royal Mail were posted on a noticeboard and priority was given to those directly employed by Royal Mail. Agency workers were only eligible to apply for the posts once they were advertised externally, which put them in competition with external candidates.

Kocur and colleagues said this was a breach of the AWR, which gives agency workers the same terms and conditions as those directly employed after they have worked for 12 continuous weeks.

The ruling

An employment tribunal (ET) agreed, ruling that regulation 13 included an obligation to give the agency worker the same chance to apply for relevant posts as a comparable permanent worker. But the Employment Appeal Tribunal (EAT) disagreed, overturning the ET’s decision (see Workplace Report, March 2021, p10). Kocur appealed, and the Court of Appeal upheld the EAT’s judgment.

The court accepted that regulation 13 does not extend to a right to apply for the vacancies, only to be informed of them. This was a valuable right in itself and accorded with a literal interpretation of the directive and its purpose of providing flexibility and security. The court accepted the EAT’s argument that prioritising internal candidates for in-house vacancies is common practice that rewards loyalty and boosts morale among the directly employed workforce. This is most obvious in the context of redundancies when permanent staff put in the redeployment pool are given priority for any vacancies that arise.

The court endorsed the EAT’s comments that this practice is beneficial to permanent workers as well as to the employer and it was highly unlikely that the directive intended to make it unlawful. Since this is a day one right, it would also mean that an agency worker who had worked for an assignment for a single day would have the right to apply for permanent vacancies.

Kocur v Angard Staffing Solution Ltd [2022] EWCA Civ 189

https://www.bailii.org/ew/cases/EWCA/Civ/2022/189.html