The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011. They apply to agency workers who are assigned to do temporary work for hirers through temporary work agencies (TWA).

The regulations introduced:-

  • Day one rights; and
  • Week 12 rights  

as set out in the table below:

Clcik here to view the table.

The new Employment Appeal Tribunal case: Coles –v – Ministry of Defence

This new case involved BRC Ltd supplying agency workers, including Mr Coles, to a Ministry of Defence organisation in Wales (DHE). 530 direct employees from DHE were placed into a redeployment pool as a result of a substantial restructure. Such employees had priority over other applicants for vacant posts including what was in effect the post Mr Coles  as an agency worker had been filling. This was advertised in the normal way. Mr Coles had ready access to the advertisement for a permanent role but did not apply for it. An employee, who was in the pool for redeployment applied and was appointed to Mr Cole’s post. As a consequence Mr Cole’s assignment was terminated. Mr Cole brought a claim that the DHE had breached his rights under the AWR by failing to allow him access to details of the vacancy and had denied him the opportunity of applying for it.   

Decision

The purpose of the right to be informed of any relevant vacancies in the hirer is to give temporary agency workers the same chance as other workers in the end user to find permanent employment with that end user. This is limited to just providing agency workers with a right to be informed of vacancies within the end user company. There was nothing to prevent an employer from giving priority to employees whose roles were at risk of redundancy (in preference to agency workers) in relation to vacant roles.  The right to be informed of vacancies should be at the same date and time for everybody and did not give any additional rights, such as the right to have an interview or to be considered for employment. 

Agency workers should not expect to have protection against losing their role in the event of redundancies. 

In this case it was considered that the guidance on AWR produced by the Department of Business Innovation and Skills is not wholly accurate in its expression of the law.   

Comment

This case is an important reminder of the extent of the protection afforded to agency workers. While the AWR gives agency workers equivalent rights to comparable employees, as regards working hours and pay, the principle of equal treatment cannot be interpreted as giving agency workers parity of status with permanent employees..

Action point

Companies that use agency workers must make sure all their agency workers are told about and have access to advertisements for all vacancies from the start of their assignment in the same way as their permanent employees.