Agency Workers' Right to Be Notified of Vacancies Does Not Include Right to Apply
In a recent case the Court of Appeal has determined that Regulation 13 of the Agency Workers Regulations 2010 only gives agency workers the right to be notified of vacancies, and does not encompass the right to apply for the position.
Contravention Claim
In the case of Kocur v Angard Staffing Solutions Ltd, Mr Kocur was an agency worker who had been employed by Angard Staffing Solutions (ASS). ASS supplied Mr Kocur's services to the Royal Mail. Royal Mail subsequently advertised permanent positions internally on their notice board but advised Mr Kocur that as an agency worker, he was not eligible to apply. Mr Kocur argued that this was in contravention of Regulation 13 of AWR and brought a claim.
What Does Regulation 13 Say?
Regulation 13 says that "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". The dispute centred on whether this duty extends to an obligation to grant an agency worker the right to apply for advertised posts.
Claim Upheld
The Tribunal upheld Mr Kocur's claim and ASS appealed successfully to the Employment Appeal Tribunal (EAT). The EAT held the Regulation 13 right is a right to be notified of vacancies in the same way as directly employed staff. The reference to giving an agency worker the same 'opportunity' to find permanent employment was held to refer to being given the same information about vacancies as permanent staff.
Mr Kocur has now appealed, unsuccessfully, to the Court of Appeal. The Court of Appeal upheld the EAT's decision, holding that Regulation 13 imposes only the right to be notified of vacancies. The Court of Appeal found the intention of the Directive was not to confer the automatic right to apply for such vacancies on agency workers. The Court of Appeal noted it would be odd for Regulation 13 to prevent employers giving preference to internal applicants when filling vacancies, for example in scenarios where staff selected for redundancy are offered suitable alternative employment.
What Does this Mean for Employers?
This decision demonstrates the ability of employers to prefer internal candidates in recruitment exercises, albeit we would recommend thought be given to each individual scenario in order to determine the appropriate candidate pool. The decision also confirms that the right to be notified of a vacancy is an advantage in itself, because the candidate will have had advance notice if it does end up being opened up to external candidates. It is not necessary to go further than this in order to give effect to the right of agency workers to be given the 'same opportunity… to find permanent work'.