Temporary agency workers’ rights have been clarified by a recent decision of the Employment Appeal Tribunal (EAT) inColes v Ministry of Defence.

The MoD in Wales employed a mix of permanent employees and temporary agency workers. When it embarked upon a substantial restructuring exercise, it placed 530 permanent employees into a redeployment pool. Any vacancies were advertised internally and all workers could have seen which vacancies were available, but permanent employees in the redeployment pool were given priority consideration. Mr Coles, a temporary agency worker, argued that this prioritisation denied him the opportunity to apply for the position that he had temporarily held. He claimed that this was, in particular, a breach of Article 6 of the Temporary Agency Worker Directive 2008, which requires that agency workers be informed of vacancies so that they have “the same opportunity as other workers in that undertaking to find permanent employment”.

Both the employment tribunal and the EAT disagreed with Mr Coles. They held that, although temporary agency workers do have various rights relating to equal treatment in respect of working time and pay, Article 6 only refers to providing equal information about vacancies. Therefore, it does not operate to prevent permanent employees from being given preferential treatment when it comes to filling any such vacancies. Although the wording of Article 6 may be slightly confusing, Mr Justice Langstaff (in the EAT) was very clear that its purpose and meaning is simply that information relating to a vacancy must be provided to temporary agency workers and any other types of workers in an equally useful form and at an equally convenient time. However, Article 6 does not restrict the terms on which employment might be offered and priority consideration for permanent employees over temporary agency workers is not contrary to the Directive. This will be a relief to employers.