The recent case of Coles v Ministry of Defence looked at whether it was discriminatory for an organisation to offer a job currently occupied by a temporary agency worker to its permanent employees, without giving the agency worker a chance to apply as well.
Mr Coles was an agency worker with a temporary role at the Ministry of Defence. As the result of a substantial restructure, over 500 MOD permanent employees were placed at risk of redeployment. Mr Coles was given notice that his assignment would cease and informed of the subsequent vacancy. However, he was not encouraged to apply for "his" old role and the MOD made it clear they would only consider applications from the at risk employees. Mr Coles brought a claim, arguing that the MOD had breached its obligations to provide equal treatment to agency workers under the Agency Workers Regulations 2010 and the Temporary Agency Worker Directive by:
- Denying him the chance to apply for the role and giving preference to those in the redeployment pool over him – if he had applied he would have been rejected as he was not in the at risk pool, and
- Failing to consider him for interview and for the role on an equal (or even a preferential) footing to the at risk employees.
The EAT rejected Mr Coles case. Agency workers have the right to be equally informed of vacant positions (under the Agency Worker Regulations 2010). The EAT found that this was a valuable right in itself, however, it did not include any right to an opportunity to secure a permanent position. The MOD had complied with its legal obligations by informing Mr Cole of the vacancy and Mr Cole had been free to apply for the role if he wished. The virtual certainty of his application being rejected was irrelevant.
The EAT said the MOD was not discriminatory by giving preference to its at risk employees over temporary staff when considering candidates for the role. It held that the right to equal treatment for agency workers (as set out in Article 5 of the Temporary Agency Worker Directive) could only extend to basic working conditions such as working hours and pay - it does not extend to the right to be equally offered or considered for alternative roles. Employers are therefore entitled to give priority to their permanent employees, particularly those whose posts are redundant, at risk or in a redeployment pool.
The EAT refused to refer the question of whether the Directive required employers to provide agency workers with opportunities for alternative roles to the ECJ.
Employers who use agency staff, are not required to offer temporary agency workers the right to compete with at risk employees for permanent posts. But remember, agency workers do however have the right to be informed of vacancies along with the right to equal treatment in relation to working time and pay.
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