The Employment Appeal Tribunal (EAT) has held that, whilst an agency worker had the right to information on vacancies, when filling a vacancy the hirer was entitled to give preference to its permanent employees who had to be redeployed as a result of a substantial restructure of the organisation.
Regulation 13 of the Agency Workers Regulations 2010 provides that an agency worker has the right to be informed of any relevant vacant posts with the hirer.
Mr Coles was an agency worker working for the Defence Housing Executive which undertook a restructure resulting in 530 employees being placed in a redeployment pool. These employees had priority for any vacancies at their existing grade.
The work being performed by Mr Coles was advertised as a vacancy which was visible to all internal candidates (although Mr Coles did not look at the advertisement or apply for it). An employee in the redeployment pool was appointed to the position and Mr Coles was given notice that his assignment would cease.
Mr Coles claimed that he had been denied his right to equal treatment in basic working and employment conditions under the Agency Workers Regulations 2010.
What does this mean?
The EAT held that the Agency Workers Regulations 2010 simply require those using agency workers to provide information as to vacancies and does not require the hirer to consider the agency worker on an equal footing with existing employees or give an agency worker the right to apply as such.
The Regulations do not establish a general right for agency workers to be treated no less favourably than comparable employees. They therefore do not prevent an employer giving priority to existing permanent employees whose roles are at risk of redundancy in preference to agency workers.
What should employers do?
Those engaging agency workers should remember to provide them with access to information about any employment vacancies in the organisation, for example by posting a notice to all workers on a notice board or on an intranet site (provided the agency worker has access to these areas like other workers).
Case reference: Coles v Ministry of Defence