In Coles v Ministry of Defence the Employment Appeal Tribunal (“EAT”) confirmed that agency workers were not entitled to equal status with comparable permanent employees when applying for a vacancy.
Regulation 13 of the Agency Workers Regulations 2010 (“AWR”) concerns the rights of agency workers in relation to access to employment and provides that an agency worker has the right to be informed of any vacant posts in order to give that agency worker the same opportunity as a comparable worker to find permanent employment.
The Claimant (Mr Coles) was an agency worker who worked as a technical liaison officer under arrangements made between Giant Parkhouse Limited (“GPL”) and Building Recruitment Company Limited (“BRC”). BRC was an agency worker business which supplied a department of the Ministry of Defence (“MOD”) with services (through GPL) to provide estates management for RAF service personnel and service families’ domestic accommodation.
In 2013, the MOD underwent a substantial restructuring which resulted in 530 MOD employees being placed into a redeployment pool, to be given priority consideration for vacancies in the MOD at their existing grade. Such employees had priority over other applicants for a vacant post on a same-level transfer within their department (under what was known as ‘Stage 1’).
An Estate Manager post (which was, in effect, the role Mr Coles had been carrying out) was advertised at ‘Stage 1’. It would have been visible to any internal candidate who wished to be considered for it. When the claim was first heard, the Employment Tribunal (“ET”) found that the role would have been visible to the Claimant had he chosen to look for it.
A permanent employee in the redeployment pool successfully applied for the post and ‘Stage 1’ applied to her. The Claimant did not apply. A consequence of her appointment was that the MOD no longer needed the Claimant’s services and he was given notice that his assignment would cease and the permanent employee would take over immediately afterwards.
The Claimant issued a claim in the ET alleging that the MOD had breached Regulation 13 of the AWR (and also the European Temporary Agency Worker Directive – “the Directive”) by failing to allow him access to details of the vacancy and denying him the opportunity to apply. The ET dismissed his claim and he appealed to the EAT.
The EAT dismissed the appeal. It held that the Directive and the AWR provide a right to information (which is a valuable right in itself), the purpose of such information being to give temporary agency workers the same chance as other workers to find permanent employment. However, this right does not extend to the terms on which there should be recruitment for any post.
The EAT held that if an employer wishes to give preference to permanent employees in respect of those being redeployed it is entitled to do so and by doing so will not be in breach of the AWR or the Directive.
This decision will come as a relief to most employers, particularly when undertaking a redundancy exercise. The right to information for AWR has now been clarified as having a narrow interpretation so that it provides a right to information, but does not extend to a right to be interviewed or to be considered for a position.