In Coles –v– Ministry of Defence, the Employment Appeal Tribunal (“EAT”) has confirmed that agency workers’ rights to be provided with information about permanent vacancies within the organisation in which they work is just that; there is no right to be considered for the vacancy, whether on equal terms with permanent staff or otherwise.
Mr Coles was supplied to the Defence Housing Executive (“DHE”), part of the Ministry of Defence, as a temporary agency worker. The DHE commenced a restructuring, with 530 permanent DHE employees placed in a redeployment pool. These employees had priority for any vacant roles in the DHE.
The DHE identified a ‘vacancy’ for a permanent employee to do Mr Coles’ role. The role was advertised internally. Mr Coles did not see the advertisement (albeit it would have been visible to him had he chosen to look for it) and so did not apply. One of the employees in the redeployment pool was successful in obtaining the role. Mr Coles’ contract was therefore brought to an end.
Mr Coles brought Tribunal proceedings alleging that the DHE had breached his rights under the Agency Worker Regulations by failing to give him the opportunity to apply for the role on an equal basis with employees directly employed by the DHE and, in particular, those in the redeployment pool.
The EAT’s Findings
The EAT held that the DHE had complied with its obligations. The DHE was simply required to provide information to Mr Coles about the permanent vacancy. The DHE had complied with this obligation by advertising the position in a place where Mr Coles could see it, in the same way as all other people working for the DHE could. The DHE was at liberty to place such conditions as it wished on recruitment for the role, including giving priority to those of its permanent employees who were at risk of redundancy. Mr Coles had no entitlement to be considered for the role on the same basis as a permanent employee.
On its face, this is, perhaps, a surprising decision, given that the objective of the Agency Worker Regulations is to protect temporary agency workers. However, notably, the Agency Worker Regulations limit equality of treatment between temporary agency workers and directly employed employees to certain specific areas, such as pay, and certain terms and conditions such as the right to annual leave. This is much narrower than the protection afforded to, for example, fixed-term employees compared with permanent employees. In fact, the EU Directive on which the Agency Worker Regulations are based contemplates that temporary agency workers will be treated differently, in certain respects, compared with permanent employees, given the common use of the former to plug temporary gaps in the workforce.