The Agency Worker Regulations do NOT give agency workers the right to apply for internal vacancies on the same terms as employees

Under Regulation 13 of the Agency Worker Regulations 2010 (‘AWR’) agency workers have the right, from day one, to be informed by the hirer of any relevant vacancies in order to give them the same opportunity as a comparable worker to find permanent employment with the hirer.  But how far does this right go?  For instance, if an employer has to make redundancies, will it be prevented from giving preference to redundant employees over agency workers for any alternative roles that are available? 

This uncertainty has recently been addressed by the Court of Appeal in the case of Kocur v Angard Staffing Solutions Ltd and anor.  The Court held that the right under regulation 13 is limited to the right to be informed of relevant vacancies.  It does not give agency workers the right to apply or be considered for vacancies on the same terms as the Hirer’s directly recruited employees.  It therefore follows that an employer’s obligation under Regulation 13 will be satisfied if it informs agency workers of the existence of available vacancies, even if they aren’t given the opportunity to apply for them. 

This may seem to be an odd decision on the face of it, given that the purpose of the AWR is to protect agency workers and ensure they have the same opportunities as permanent employees.  However, the Court held that the right to be informed of vacancies was in itself a real advantage, and noted, among other things, the adverse consequences that might flow if the AWR included a right to apply and be considered for vacancies.  It concluded that if this had been the intention of the legislation, then the AWR would have been drafted to make express provision for such a right. 

This decision will be welcomed by employers who regularly use agency workers, particularly when undertaking redundancy and redeployment exercises, as they will be able to give preference to internal candidates for any available vacancies without fear of breaching the AWR.

For further information or for help and advice on what to do with your agency workers, please contact us on [email protected] or via our website www.boyesturner.com