The Employment Appeal Tribunal (EAT) has held in Angard Staffing Solutions Ltd and anor v Kocur and ors that although agency workers are entitled to be informed about vacancies during an assignment, that does not also give them the right to apply for them.
Mr Kocur and a number of other agency workers brought claims against Angard Staffing Solutions (their employer) and Royal Mail (the hirer) alleging breaches of the Agency Workers Regulations 2010 (AWR).
In relation to regulation 5, the claimants alleged that it was a breach:
- To require them to work an extra 12 minutes per shift and to exclude them from “Listening and Learning” weekly training sessions offered to permanent staff
- Not to implement a pay rise at the same time as comparable permanent staff
- To give first refusal in relation to overtime opportunities to permanent staff in preference to agency workers.
In relation to regulation 13, they alleged that it was a breach of the AWR not to give agency workers the same opportunity to apply for certain vacant posts in the same way as comparable permanent workers.
Regulation 5 provides that agency workers are entitled to the same basic working and employment conditions of work as permanent employees after 12 weeks in the same job. Regulation 6(b) of the Agency Workers Regulations 2010 states that one such condition is the same “duration of working time”.
Regulation 13(1) of the AWR gives agency workers the right to be informed by the hirer of any relevant vacant post so that they have the same opportunity as a comparable worker to find permanent employment with the hirer.
The tribunal agreed with the claimants that the requirement to work an extra 12 minutes per shift infringed their right under regulation 5 to the same basic working and employment conditions as permanent employees. However, it rejected the argument that the respondents were in breach of the AWR when they excluded agency workers from the weekly training sessions, as there was nothing in the wording of either the European directive or the regulations obliging employers to provide equality of treatment in relation to the content of working time.
With regard to the pay rise, the tribunal held that this did not constitute a breach of the regulations as the date for payment of a backdated pay rise constituted a mechanism for parity, not parity itself. As for overtime, it held that the “duration of working time” could only refer to the duration of the assignment that had been given to the agency workers, whereas overtime working involved working beyond the duration of the assignment.
In relation to regulation 13, the tribunal agreed with the claimants that the respondents were obliged to give agency workers the same opportunity to apply for (not just be informed about) relevant vacant posts.
Both parties appealed.
With regard to the alleged breaches of regulation 5, the EAT held that:
- It was not a breach to impose longer shifts on agency workers as they were not entitled under the AWR to the same number of contractual hours as a comparator directly-recruited worker.
- It was not a breach to provide weekly half-hour training sessions for direct employees and not agency workers as there was no requirement under the law in relation to the content of working time for equality of treatment.
- With regard to the late implementation of the pay rise, the EAT found that there could be a potential breach of the requirement to provide equal treatment relating to “pay”. It therefore remitted the matter to a different tribunal.
- The right to equality of treatment concerned with “overtime” did not extend to a right to equal treatment in relation to opportunities for overtime.
In relation to the alleged breach of regulation 13(1), the EAT held that the right to be notified of any relevant vacant posts and the right to the same level of information for agency workers did not mean that they were entitled to apply for and be considered for internal vacancies on the same terms as directly recruited employees.
The decision is fact specific but the finding that agency workers do not have the same rights to be considered for internal vacancies is particularly disappointing and will have a wider impact.