Labour & European Law Review Weekly Issue 436 09 September 2015
The Agency Workers Regulations and the Directive on Temporary Agency Work give agency workers the right to be informed about vacant posts in the organisation where they have a temporary assignment. In Coles v Ministry of Defence, the Employment Appeal Tribunal (EAT) held that the right was only to be informed of a vacancy, not to be considered for a vacancy on an equal footing with a comparable permanent employee.
Mr Coles was an agency worker for a section of the Ministry of Defence (MoD) providing estates management services to RAF personnel and their families in Wales. In 2013 following a major restructure, 530 direct MoD employees were put into a redeployment pool and given priority over other applicants for suitable alternative vacant posts.
In May the post Mr Coles had been filling was advertised but he did not apply for it, although he would have had access to the advertisement. Instead a permanent employee was appointed and Mr Coles was given notice that his assignment would cease in August 2013.
He lodged a tribunal complaint that the MoD was in breach of Regulation 13 of the Agency Workers Regulations 2010 and Articles 5 and 6 of the Directive on Temporary Agency Work as it had failed to allow him access to details of the vacancy of his post and denied him the chance to apply for his position.
Regulation 13 states that “An agency worker has during an assignment the right to be informed of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer”.
Article 5 of the directive sets down the principle of equal treatment for agency workers to basic working and employment conditions, such as pay, working hours and holidays. Article 6 states that “Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment.”
The tribunal rejected Mr Cole’s claim, holding that the directive only required employers to provide agency workers with information about vacancies; it did not give agency workers the right to be considered for a vacancy on an equal footing with existing employees of the end user.
The tribunal held that both the regulations and the directive allowed employers to give priority to workers whose posts were redundant, who were at risk of losing their employment, and who had been placed in a redeployment pool in the search for alternative work with their employer. The directive did not require the employer to displace existing permanent workers by offering temporary agency workers the right to compete with permanent workers for a vacant post.
The EAT dismissed the appeal, holding that the principle of equal treatment under article 5 applied to “basic working and employment conditions” which were defined as pay and working hours. The EAT drew a distinction between the right to equal treatment for agency workers and that for fixed-term employees. In particular, it noted that the right to equal treatment for fixed-term employees was a general right not to be treated less favourably simply because the person was on a fixed-term contract which was broader than it was for agency workers.
Likewise article 6 only gave temporary workers the right to be informed of a vacancy, which was not the same as the right to have an opportunity to be considered for a post such as a right to an interview. Both the directive and the regulations provided a general right for agency workers to have the “opportunity” to find permanent employment by giving them information about vacant posts. In other words, “equal provision of information is what is stressed, rather than equality in the job application process”.
The EAT refused to refer the matter to the Court of Justice of the European Union to clarify the matter of the rights conferred under Article 6.
This case is a reminder of the limited scope of the right to equal treatment under the Agency Workers Regulations compared with a more general right not to be treated less favourably under the Fixed-Term Employee Regulations and Part-Time Worker Regulations.