InsightsInsight - Employment & HR - POSTED: August 26 2015
Agency workers – not the same rights as permanent staff
The Employment Appeal Tribunal has indicated the Agency Workers Regulations means an agency worker has to be told about vacancies but do not have to be given the job.
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Background – The Agency Workers Regulations 2010
The Agency Workers Regulations 2010 (AWR) apply to agency workers who are placed to do temporary work through temporary work agencies. The AWR means that agency workers must be told about job vacancies at the companies where they have been placed.
The Regulations say:
“An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.”
Mr Coles was an agency worker supplied by Building Recruitment Company Limited to the Defence Housing Executive (DHE) which is part of the Ministry of Defence. As part of a restructure DHE put a large number of employees at risk and those within the redeployment pool were given “stage 1” status. This status meant they had priority for any vacancies at their existing grade.
In May 2013, the work being performed by Mr Coles was advertised as a vacant post. The advert was visible to Mr Coles and others, although Mr Coles did not apply. A candidate who had stage 1 status was appointed meaning that Mr Coles was no longer needed and he was told his assignment would cease.
Mr Coles brought claims alleging that DHE had not given him access to details of the vacancy and he had had not been able to apply for the role. He said DHE had breached his rights to equal treatment in basic working and employment conditions.
The Employment Appeal Tribunal decided that there was a vacancy and Mr Coles had been entitled to be told about it. However, his rights were limited to provision of information in the same way as permanent employees and did not mean he had the right to be considered for any vacancy on an equal footing. They concluded there was nothing in the relevant legislation which meant that an employer could not give priority to employees whose roles were at risk of redundancy.
This case is an important reminder of the protection given to agency workers. The AWR gives agency workers equivalent rights to permanent employees when looking at working hours and pay. This case makes it clear that the principle of equal treatment does not mean agency workers have to be treated the same as permanent employees regarding appointment to posts.
If you have any questions regarding this case or about AWR, please contact Catherine Daw on 01622 655291 or email firstname.lastname@example.org.
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