Employment Law Cases

Agency workers: right to be informed of vacancies

Kocur v Angard Staffing Solutions Ltd

Regulation 13 of the Agency Workers Regulations 2010 gives agency workers a right to be informed of vacancies in the same terms as permanent workers: it does not give them a right to apply.

Background

Mr Kocur and colleagues worked as agency workers for Royal Mail, supplied via its wholly-owned subsidiary employment agency Angard. They are no strangers to litigation, having been to the EAT (three times) and Court of Appeal (once) on various preliminary issues relating to their claims.

When vacancies came up in the Leeds office, these were put on the internal noticeboard for all to see, but permanent staff had the first chance to apply. Mr Kocur brought a claim under regulation 13(1) of the of the Agency Workers Regulations 2010 (AWR) on the basis that he was told that he would not be eligible to apply for these vacancies but could only apply for vacancies when they were advertised externally, and when he did so, he would be in competition with external applicants. A tribunal upheld his claim but the EAT dismissed it, holding that reg. 13(1) does not mean that agency workers have a right to be entitled to apply and be considered for internal vacancies on the same terms as directly recruited employees. With reference to flexibility being at the heart of the relationship between hirers and agency workers, the EAT distinguished the relationship between hirers and agency workers from the relationship between hirers and direct recruits. The EAT’s reasoning stated that the whole point of using agency workers is the flexibility they provide to deal with fluctuations in demand. Mr Kocur appealed.

Court of Appeal decision

The appeal was dismissed.

The Court of Appeal was satisfied that there was an inherent value to a right to be informed without a right to apply, most particularly ensuring that agency workers weren’t unaware of potential opportunities.

The court undertook a detailed analysis as to whether Mr Kocur’s argument that it is wrong to adopt a literal, and narrow, interpretation of reg. 13(1) was correct. It concluded that the Temporary Agency Workers Directive (on which the UK regulations are based) does not purport to be more than it expressly provides for, namely a limited right to information.

It rejected Mr Kocur’s argument that the directive’s purpose was to accord a high degree of primacy to the position of temporary employees relative to permanent workers but also vis à vis the hirer. Rather, the directive endeavours to strike a pragmatic balance between a variety of different competing objectives without creating any hierarchy of interests. In addition, the directive was one of minimum harmonisation and it was for member states to decide how much further to go. If Parliament had intended to provide for a right to apply, then that would have been spelt out in the legislation, along with a description of how it was to be implemented.

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

Comment

The practical impact of this decision is that whilst an employer would have to inform agency workers about any vacancies, the employer could give preference to in-house employees over agency workers when a vacancy occurs. This would extend to an employer giving preferential treatment to employees, who for example, had been selected for redundancy and placed in a pool for redeployment.