Informing Agency Workers of Vacancies: What’s required?

The right of agency workers to be provided with information about vacant roles does not extend to being considered for such vacancies on an equal footing with permanent employees. 

Speedread

The right of agency workers to be informed of vacancies in the end-user company where they are working is limited to just that. There is no right under the EU Temporary Workers Directive or the Agency Worker Regulations 2010 to be considered for such vacancies on an equal footing with permanent employees. An employer is entitled to favour a potentially redundant permanent employee over an agency worker already working in the post, even if that means ending the agency worker's assignment.

Facts

In Coles v Ministry of Defence, Mr Coles was an agency worker engaged to work at Defence Housing Executive (DHE), part of the Ministry of Defence. Due to a restructuring, 530 DHE employees were placed into a redeployment pool and were to receive priority consideration for vacancies at their existing grade. In May 2013, the role which Mr Coles was performing was advertised as a vacant post. The advert could be viewed by all internal candidates, including Mr Coles, although he did not see the advert, nor apply for the vacancy. An internal applicant from the redeployment pool applied for the job and was appointed. DHE issued notice that Mr Coles’ assignment would cease.

Under the EU Temporary Agency Worker Directive and the Agency Worker Regulations 2010 (AWR), an agency worker has the right to be informed of vacancies in the end-user. Agency workers are also entitled to equal treatment in respect of basic employment and working conditions. 

Mr Coles argued he had a right not simply to be informed of vacancies, but also to be considered for vacant posts on an equal footing with permanent employees. He was entitled to the same status as a comparable permanent employee in the redeployment pool. 

The decision

The employment tribunal rejected Mr Coles’ claim and the Employment Appeal Tribunal dismissed his appeal. 

The principle of equal treatment under the Directive is limited to basic employment and working conditions, defined as working hours and pay. There is no general right for an agency worker to be treated no less favourably than comparable permanent employees. 

The EAT noted Regulation 13 AWR states that the right to be informed of vacant posts is so that an agency worker is given “the same opportunity as a comparable worker to find permanent employment with the hirer”. The reference to “the same opportunity” is merely intended to ensure that the right to be informed of vacancies is not devalued by, for example, providing information at a later date. It does not confer additional rights, such as the right to have an interview or to be considered for employment. 

There EAT also declined to ask the European Court of Justice for a ruling on the meaning of the words “the same opportunity”. There were no grounds for interpreting them as meaning anything other than that suggested by a straightforward reading of the legislation. 

Comment

Businesses which use agency workers will be reassured by this common sense decision. An employer is entitled to favour a potentially redundant permanent employee over an agency worker already working in the post, even if that means the end of the agency worker's assignment.

The obligation to provide information about vacancies is not an onerous one. Simply posting an advertisement on the company’s intranet or a notice board, where it can been seen by temporary and permanent staff alike, is sufficient. An agency worker has no additional right to be interviewed or considered for employment. Nevertheless, in different circumstances an end-user will generally be keen to consider applications from agency workers who already know the role or its business, as this will cut down on recruitment and training costs.