In Coles v Ministry of Defence UKEAT/0403/14 the Employment Appeal Tribunal (EAT) considered whether, under the Agency Workers Regulations, agency workers only have the right to be informed of vacancies or whether they have to be given preference ahead of permanent employees.

Facts

Mr Coles was an agency worker who was assigned to work as a technical liaison officer to the Defence Housing Executive (DHE) (in effect the Ministry of Defence) at Barry in South Glamorgan. 

In 2013 the DHE decided on a substantial restructure, which had the effect of placing 530 direct employees in a redeployment pool. The individuals in the pool were given priority consideration for vacancies in the MOD at their existing grade. The employees had priority over other applicants for a vacant post on a level transfer within their department. In May 2013 the role that Mr Coles had been undertaking was advertised and was visible to any candidate internal to the DHE who wished to be considered for it. It would have been visible to Mr Coles had he chosen to look for it but he did not apply for the position. 

One of the permanent employees who was in the redeployment pool applied for the position that Mr Coles had been undertaking and was appointed, which meant that the DHE no longer had need for Mr Coles and he was given notice that his assignment would end with effect from 2 August 2013. 

Mr Coles complained to an employment tribunal that the MOD had failed to allow him access to details of the vacancy and had denied him the opportunity to apply for his position in breach of Regulation 13 of the Agency Workers Regulations 2010 (the Regulations) and Articles 5 and 6 of the Temporary Agency Worker Directive (the Directive). 

Employment tribunal decision

The employment tribunal rejected the complaint. It also rejected Mr Coles' submission that the Regulations did not permit the MOD to form a redeployment pool of employees, such that those within that pool might be given priority over temporary agency workers for vacancies within its undertaking. It rejected Mr Coles' contention that what the Directive required was not simply information as to vacancies but also the right to be considered for such a vacancy on an equal footing with existing employees of the end user. It accepted that the Directive had been properly transposed into domestic law by Regulation 13 and that both the Directive and the Regulations required the provision of information as to vacancies so as to confer an opportunity for potential application, but did not confer the right to apply as such. 

The employment tribunal declined to make a reference to the ECJ, holding there was no real doubt as to the intention of the Directive. Mr Coles appealed. 

EAT decision

Dismissing the appeal, the EAT held it was clear that the Directive provides a right to information only. The right is a valuable right in itself. The purpose of the Directive is to give temporary agency workers the same chance as other workers in the undertaking of the end user to find permanent employment with the end user. 

The EAT commented that the Directive says nothing about the way in which the recruitment process should be undertaken and that, if the employer wishes to give preference to those being redeployed within its business, it is entitled to do so and will not be in breach of the obligations imposed by the Regulations or the Directive. 

The EAT went on to state that it did not believe that the guidance issued by the Department of Business, Innovation and Skills on the Regulations was legally accurate as it saw no reason why the obligation to provide information about vacancies should be curtailed even where there was a genuine headcount freeze. However, this did not change the fact that, in the EAT's view, the employer was only obliged to provide information about vacancies and beyond that it was entirely for the employer to decide how to conduct the recruitment process and whether preference should be given to those in a redeployment pool. 

On the issue of making a reference to the ECJ, the EAT agreed with the tribunal's decision (although arriving at the decision by a different route). There was no basis for anything other than a straightforward reading of the legislation.

Comment

This case is of interest to all employers who use agency workers, as it clarifies the position on the provision of vacancy information to agency workers. Some employers have adopted a more pro-active approach of informing agency workers of vacancies within their business. However, this case illustrates that this is not necessary, so long as the agency worker has the same access to the information as a permanent employee. 

Secondly, and perhaps of more interest, is the fact that once information about a vacancy has been made available to the agency worker, the employer has complete freedom over the design of the recruitment process.