Do agency workers have the right under the Agency Workers Regulations 2010 to apply for a directly employed vacancy with the hirer?
No, held the Court of Appeal in Kocur v Angard Staffing Solution Ltd.
The Claimant was employed by Angard and supplied to Royal Mail Group Ltd as an "Operational Post Grade" ('OPG'). Angard is a wholly owned subsidiary of Royal Mail and only supplies its workers to Royal Mail. When Royal Mail had vacancies at OPG level, direct employees who were already in different permanent roles, or were in other less secure (but directly employed) roles, were allowed to apply before agency workers.
It was argued that the right under the Agency Workers Regulations 2010 to be notified of any vacancies at the hirer, included by implication the right to apply for those jobs. Rejecting that argument, Lord Justice Green said:
"Upon the basis of the recitals to the Directive and the contents of the travaux preparatoires, there is no hint of [a right to apply for vacancies]...ever having crossed the minds of the [EU] Commission, the Council or Parliament...[T]he appellant's argument assumes that when the Directive was adopted (in 2008) temporary workers and permanent workers were treated as comparable in every respect. However, as already observed...the Directive recognises that temporary workers are not, in all respects, comparable with permanent workers..."
Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.
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