The Employment Appeal Tribunal (EAT) has provided helpful clarity, in the case of Coles v Ministry of Defence (MoD) in relation to the limited scope of the duty under the Agency Workers Regulations 2010 (AWR) to provide agency workers with access to information about vacancies in the organisation they are temporarily working in.
Background
The AWR introduced in October 2011 with much fanfare applies to agency workers, specifically individuals assigned to carry out temporary work with a hirer (end-user) via a temporary work agency.
The AWR provides a number of rights for agency workers from day one of a temporary assignation. Agency workers obtain additional rights after a 12 week qualifying period.
The day one rights include agency workers being entitled to information about a hirer’s relevant job vacancies, to provide the agency worker with the same opportunity as comparable staff within the hirer’s organisation to obtain permanent employment.
ET Case – facts
Mr Coles was an agency worker engaged by a part of the MoD. That part of the organisation was subject to a restructuring exercise, which involved 530 employees of the MoD being placed into a redeployment pool and given special status meaning that those employees would have priority in relation to any vacancies available at their existing grade within the MoD.
The role that was being temporarily carried out by Mr Coles was advertised by the MoD as a vacant post in May 2013. The advertisement was visible to all internal candidates including Mr Coles, although it appears that he did not see the advertisement and did not apply for the role. One of the MoD employees in the redeployment pool applied for and was appointed to the permanent position, as a result of which Mr Coles’ services became surplus to requirements and he was issued with notice.
Mr Coles brought a claim in the ET asserting a breach of the AWR and further a breach of the Temporary Workers Directive 2008 (“the Directive”), which the AWR is intended to give effect to in the UK. The Directive details the right to information about job vacancies for temporary workers and also the principle of equal treatment in relation to basic working/ employment conditions for temporary workers; specifically these must be no less favourable than those available to the hirer’s staff.
It was Mr Cole’s position that the MoD had failed to provide him with details of the vacancy thereby denying him the opportunity apply for the role, which he asserted was a breach of the AWR and the Directive.
The ET disagreed. Whilst the ET accepted that a vacancy had arisen in relation to which Mr Coles was entitled to be informed, the rights he was provided with under both the AWR and the Directive (which was deemed to have direct effect) were limited only to the provision of information about vacancies and did not create a right for Mr Coles to be considered for any vacancy on an equal basis with the MoD’s staff.
The ET determined that there were no provisions within the AWR or Directive that precluded an employer from treating its permanent staff at risk of redundancy preferentially in comparison to agency workers. Mr Coles appealed.
The EAT Decision
EAT dismissed Mr Coles’ appeal. Mr Coles had argued that under the applicable statutory provisions he had the right to be considered for any vacancies on an equal basis with permanent staff, meaning that he should have been afforded the same special status in the redeployment pool as the MoD’s permanent staff.
The EAT did not accept that the principle of equal treatment in the Directive, which is drafted to cover basic working and employment conditions (i.e. pay and hours of work etc) could not be construed as conferring a wider right for temporary agency workers to be treated no less favourably than comparable permanent employees.
The EAT considered that the reference in the AWR to agency workers being afforded “the same opportunity as comparable workers” in relation to information about relevant job vacancies was designed to ensure agency workers’ rights were not denigrated, for example, by hirer’s giving them vacancy information at a different/later time to its permanent staff.
Comment
This case is helpful and provides reassurance to the many employers who rely on agency workers about the limited extent of certain rights provided under the AWR. Specifically, the AWR affords equivalent rights to comparable permanent employees in certain important areas such as pay and hours of work (after a 12 week qualifying period) but the principles of equal treatment do not extend more widely including in relation to providing agency workers with information about relevant job opportunities.
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