Are agency workers entitled to apply and be considered for vacancies on the same terms as directly-recruited employees under the Agency Workers Regulations 2010 ('AWR')?
No, held the EAT in Angard Staffing Solutions Ltd & anor v Kocur & anor.
The Claimant agency workers were supplied by the Respondent to Royal Mail, who prevented them from applying for vacancies unless they were advertised externally.
Regulation 13 of the AWR provides agency workers with the right to be informed by the hirer of any relevant vacant posts, to give them the same opportunity as a comparable worker to find permanent employment with the hirer.
However, the EAT held that this does not mean that agency workers have a right to be entitled to apply for and be considered for internal vacancies on the same terms as directly-recruited employees. Rather, said the EAT, it is a right to be notified of the vacancies on the same basis as directly-recruited employees, and a right to be given the same level of information about the vacancies as the directly-recruited employees.
The EAT also held there was no breach of Regulation 5 (which entitles agency workers to the same basic working and employment conditions as they would be entitled to had they been directly-recruited by the hirer) in respect of:
- agency workers' shifts being longer than direct employees, as agency workers are not entitled to work the same contractual hours as comparable directly-recruited staff;
- failure to provide agency workers with the same training as direct employees during working time;
- affording direct employees first refusal of overtime and
- the scheduling of rest breaks.
Thanks to Tim Cross of Vista Employer Services for preparing this case summary.