Thanks to Ed McFarlane of Deminos HR for preparing this case summary
Does EU law require that an agency worker in a temporary job be given a right to apply for that job, and/or get preference ahead of an employer's permanent employees?
No, held the EAT in Coles v Ministry of Defence, dismissing the Claimant's appeal and a request for a reference to the European Court of Justice.
The Claimant was an agency worker for the MoD. After redeploying redundant permanent employees, the MoD filled the Claimant's role, without offering him an interview for 'his' job. Whilst the Claimant had been informed of the vacancy, as required by the Agency Workers Regulations 2010, he maintained that the failure to allow him to apply for the post, and/or to give him preference ahead of permanent employees breached his right to 'equal treatment' in basic working and employment conditions under the Temporary Agency Worker Directive.
The EAT held that for agency workers, "the principle of equal treatment is confined to working time and pay", unlike the general right to no less favourable treatment of fixed-term employees. The right of agency workers to be informed of vacancies was a valuable right in itself. To refuse agency workers interviews would not breach any duty under the Directive.
The EAT refused to make a reference to the ECJ on whether the Directive required employers to provide opportunities for agency workers to find alternative employment beyond giving them information on vacancies.