• Samantha Hees

Vacancies and Agency Workers – The Right To Be Informed v The Right To Apply

Many companies have busy periods which necessitate additional short- or medium-term staffing resources. One way of resolving this is by the use of agency workers.

Since the Agency Worker Regulations 2010 came into force in October 2011, agency workers have additional rights and the Hirer and the Agency, which is effectively the worker’s employer, need to be aware of these.

Day One Rights

Access to Facilities and Services

An agency worker should have the same rights of access to services provided for directly employed workers.

These may include:

  • a canteen or other similar facilities

  • a workplace crèche

  • transport services, but not company car allowances or season ticket loans

  • toilets and shower facilities

  • staff common room

  • waiting room

  • mother and baby room

  • food and drinks machines

  • car parking

Access to Job Vacancies

An agency worker should have the same rights of access to job vacancy information as directly employed workers. This is also a Day One right and has recently been clarified by an Employment Appeal Tribunal case, Angard Staffing Solutions v Kocur.

What happened?

Mr Kocur was an agency worker at Royal Mail, where he carried out sorting duties. He claimed that Royal Mail had prioritised existing employees when they sought to fill sorting office vacancies and that by doing so, they had breached his rights under Regulation 13 of the Agency Worker Regulations 2010 (see below) to be informed about vacancies in the organisation.

Kocur’s argument was that the right to be informed about vacancies was meaningless if it did not also give him the right to apply for them.

Although the employment tribunal ruled in his favour, the Employment Appeal Tribunal overturned that decision and dismissed Kocur’s claim. They said that the right to be informed about vacancies meant that agency workers were entitled to the same amount of information on vacancies as that received by employees, and they did not have a right to be apply for those posts or be considered on the same terms as employees.

What does the law say?

Regulation 13

Rights of agency workers in relation to access to employment

13. (1) 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.

Has this come up before?

A very similar case arose in 2015, that of Coles v Ministry of Defence. Restructuring within the Ministry meant that over 500 permanent employees were placed in a redeployment pool; they would then be given priority over any other applicants if vacant and suitable posts arose.

As it happened, a post did arise which was, more or less, the same job that Coles had been doing; it was advertised, and therefore visible, on the Civil Service jobs website for all internal candidates to see. However, Coles did not see the advertisement and did not apply for it.

Instead, it went to someone from the redeployment pool. This meant Coles’ services were no longer needed and as a result, his assignment finished. He brought an employment tribunal claim that he had not been given access to details about the position and had been denied the opportunity to apply for it. This, he said, breached Regulation 13.

The ET dismissed his claim and he appealed, but the Employment Appeal Tribunal came to the same decision and their reasons were very similar, if not identical to those quoted by the EAT in the Kocur case.

What other rights do the Regulations confer?

After completing a 12-week qualifying period in the same or similar role for the company, the Agency Worker will gain Equal Pay and Conditions rights.

These include:

  • Pay Rates

  • Annual Leave Entitlement

  • Rest Breaks

  • Paid time off for ante-natal appointments

What should employers do?

This decision and the one in the case of Coles confirm for those using agency workers that Regulation 13 relates to the equal provision of information rather than equality in the application process. As long as the business ensures that all agency workers are made aware of vacancies to the same extent as permanent employees, it will have fulfilled its obligation under the Regulations. It should be borne in mind, however, that even though both Coles and Kocur failed in their claims, this may not deter or prevent other agency workers from trying the same thing in future, so a business should be aware of the matter and have their defence ready.

It is up to the business how they publicise any vacancies that arise: for example, an intranet, internet web site or the company notice board, but it is important that agency workers know where the information is displayed and how to access it. That can be covered as part of their induction process.

Bearing in mind the significant shift in rights that occurs at the 12-week point in an agency worker’s assignment, if the assignment looks as if it is going to continue past this point, the employer should have a clear discussion with the worker and the agency on the length of the assignment, the pay for those directly employed workers doing the same work and the facilities the company provides. This should allow them to transition seamlessly if the 12-week point is passed.

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