Tribunal clarifies agency workers’ rights on vacancies - Palmers Solicitors

Tribunal clarifies agency workers’ rights on vacancies

An employment appeals tribunal has ruled that agency workers have the right to be informed about permanent vacancies but none to be considered for a job ahead of others in recruitment ‘pool’.

The ruling, published on 31 July, involved a Mr Coles who had worked as a technical liaison officer on an agency basis for the Ministry of Defence (MoD).

During a restructure in 2013, the MoD placed 530 employees in a redeployment pool, giving them priority for consideration for MoD vacancies on their existing grade. An MoD employee within the pool successfully applied for Mr Coles’ role in May 2013 and he was given notice that his assignment would end in August that year.

Mr Coles went to an employment tribunal, arguing that the MoD had failed to comply with the 2008 Temporary Agency Worker Directive and the Agency Workers Regulations (AWR) 2010 by not giving him access to details of the vacancy and denying him the opportunity to apply.

Under the AWR, agency workers must be given certain employment rights as soon as they start an assignment, including having access to information on job vacancies. After 12 weeks in a role, they must have the same basic working and employment conditions of a comparable permanent employee.

The tribunal rejected Mr Coles’ claim and at the employment appeals tribunal, Mr Justice Langstaff upheld its decision. He said that the agency worker legislation gave such workers the “valuable right” to information about jobs, to give them the same chance as other workers to find permanent employment, and the tribunal had found Mr Coles had ready access to the vacancy advertisement, had he chosen to look for it.

Mr Justice Langstaff added that agency workers had no further rights in relation to selection for a post or applications for vacancies in preference to other permanent employees. He said: “If an employer wishes to give preference to those being redeployed, perhaps to satisfy his obligations to them as his permanent employees, he is entitled to do so, and will not in doing so break any duty imposed by the Regulations or the Directive.”

He said the law on providing equal treatment “could not and does not extend beyond working time and pay”.

Palmers’ Employment Law  specialist Lara Murray said: “While this case provides some useful clarification of this specific area of the law relating to temporary agency staff, employers may be unsure about what their obligations are when recruiting this type of worker.

“The use of temporary workers is growing in popularity as a flexible way for employers to boost their workforce to meet fluctuations in demand, with the August 2015 JobsOutlook survey from the Recruitment and Employment Confederation finding that 98 per cent of employers intended to maintain or increase their use of temps in the next quarter.

“So it is employers’ interests to be clear about exactly where they stand in relation to agency workers’ employment rights. We can provide straightforward advice and where an issue arises with an agency worker that could escalate into a more serious dispute or even an employment tribunal case, we can assist in resolving the problem at an early stage. For more information on all employment law issues, please contact us.”