The obligation to inform temporary workers of vacancies with the lessor does not extend to the right to apply and be considered for vacancies.

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In the recent case of Kocur v Angard Staffing Solutions Ltd and anotherthe Court of Appeal held that the right of agency workers to be informed of any vacancies with the employer under section 13(1) of the Agency Workers Regulations 2010 (the AWR) does not does not extend to the right to apply and/or be considered for the notified position under the same conditions as direct recruits.

Background

Mr Kocur was a temporary worker for the purposes of the AWR and was employed by Angard Staff Solutions Limited (Angard), a wholly owned subsidiary of Royal Mail Group Ltd (Royal Mail). Angard supplies agency workers exclusively to Royal Mail and Mr Kocur has been supplied to Royal Mail to work in a mail centre. When vacancies for permanent mail center positions became available, they were posted on the mail center bulletin board and offered to permanent employees first. Temporary workers were not eligible to apply for these positions. Agency workers were only allowed to apply for a vacancy once the relevant vacancy had been advertised externally, in which case the agency worker would be required to compete against other external applicants.

Mr. Kocur argued that this practice violated AWR Rule 13 because he was not eligible to apply for the vacancies listed. He argued that for AWR Rule 13 to be interpreted correctly, an agency worker must have (i) the right to be informed of vacancies; and (ii) a right to apply and be considered for vacancies, as without the latter, the former would be meaningless.

Tribunal decisions

The Labor Court held that the express right to receive details of vacancies extended to an implied right to apply and be considered for relevant vacancies. However, the EAT disagreed. The EAT held that the right was only to be informed of any vacancy, not to apply and/or to be considered for the vacancy. Therefore, the EAT considered that this obligation was satisfied if agency workers were informed of relevant job vacancies, even if they did not have the possibility to apply.

Court of Appeal Decision

The Court of Appeal dismissed the appeal, finding that the EAT had correctly interpreted AWR Rule 13. It held that the AWR does not confer on any temporary worker a right which goes beyond the right to be informed of a vacancy.

Comment

The Court of Appeal ruling is the latest in a long case involving agency workers assigned to Royal Mail. The underlying question was to what extent agency workers are entitled to non-discriminatory parity of treatment with directly employed workers with regard to applying for internal vacancies. This decision confirms that agency workers are not comparable to permanent workers in this respect, which will no doubt be welcomed by the recruiters of agency workers.

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