Do agency workers have the right to apply for vacancies with a hirer?

Agency workers have the right, during an assignment, to be informed of any relevant vacant posts with the hirer. The right applies from day one of an assignment. This information can be provided by general announcement in a suitable place within the hirer’s premises.

The Claim

Mr K, an agency worker, was employed by A Ltd, an employment agency. A Ltd supplies agency workers to RM. Mr K was supplied by A Ltd to RM to work in a mail centre. Vacancies for permanent positions at the mail centre were put on a notice board and offered first to direct employees of RM. Agency workers were not eligible to apply for those vacancies. Agency workers were entitled to apply for any vacancies that were advertised externally, in competition with other external applicants. The procedure was in agreement with the recognised Union.

Mr K issued a claim in the Employment Tribunal. He argued that his rights under the Agency Workers Regulations (the Regulations) had been breached because he was ineligible to apply for the internal vacancies notified on the notice board. The Tribunal agreed, and found that the express right to receive information extended an implicit right to apply for relevant vacant posts.

The Employment Appeal Tribunal disagreed. It found that the right was only to be notified of the vacancies on the same basis as directly recruited employees. However, there was no right to apply, and be considered, for internal vacancies on the same terms as directly employed employees.

Do agency workers have the right to apply for the hirer’s vacancies?

Mr K appealed to the Court of Appeal. He argued that the Regulations give an agency worker a) a right to be notified of vacancies; b) a right to apply for a vacancy; and c) a right to be considered for a vacancy.

The Court of Appeal agreed with the EAT and dismissed the appeal. It found that the Regulations are concerned only with a right of notification and do not address what happens after notification.

Comment

This judgment gives clarity to hirers that the Regulations will be complied with where agency workers are notified of and provided with information about vacancies on the same basis as directly recruited employees. The agency worker’s rights do not extend to a right to apply for or be considered for internal vacancies on the same terms as directly recruited employees.

Kocur v Angard Staffing Solutions Ltd and another

25 February 2022

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