In Kocur v Angard Staffing Solutions Ltd & Anor the Court of Appeal has considered whether the right for agency workers to be informed by the hirer of any relevant vacant posts (contained in Regulation 13 of the Agency Workers Regulations 2010 ("AWR")) extends to include a right to apply for those roles on the same terms as comparable directly-recruited employees. At first instance the Employment Tribunal had found that such a right should be implied. However, the Employment Appeal Tribunal judgment disagreed, finding that the right was only to be notified on the same basis as directly recruited employees, and to be given the same level of information about the vacancies.
The Court of Appeal has upheld the EAT's judgment. The EU Temporary Workers Directive ("the Directive") that the AWR gives effect to does not expressly refer to a right to apply and be considered for vacancies on the same terms as directly recruited employees. If a right to apply for vacancies was to be implied, that would prioritise the interests of agency workers over those of directly recruited employees and the hirer. Instead the Directive strikes a pragmatic balance between the competing interests of a number of different parties without creating a hierarchy of interests.
In the view of the Court it would be odd if the Directive meant that an employer could not give preferential treatment to in-house candidates when a vacancy occurs. This position is most clearly demonstrated in the context of a redundancy situation where those at risk are often placed in a redeployment pool and given preferential treatment for vacancies that exist elsewhere in the establishment. The Court found it unlikely that the Directive intended to render this practice unlawful by requiring employers to make any such job opportunities in a redundancy situation open to agency workers as well. Further, the Regulation 13 right is a "Day 1" right. The Court found it difficult to see why an agency worker who has only been working for the hirer for a day or two should be entitled to the same rights to apply and be considered for a vacancy as directly recruited employees.
The argument that such a narrow interpretation of Regulation 13 rendered it ineffective was also rejected. The right to be notified of vacancies still conferred some advantages on agency workers, particularly in comparison to external candidates for a role.
This judgment will be of some comfort to employers. It recognises that agency workers fulfil a need on the part of hirers to respond to fluctuating workforce demands. Extending the right to be notified of vacancies to include a right to apply and be considered for those vacancies on the same terms as comparable directly recruited employees would have chipped away at that flexibility.
