In this case the EAT considered the scope of an agency worker's right to be informed of vacancies where the vacancy advertised was the role the agency worker had been performing.
Mr Coles was an agency worker supplied to the Defence Housing Executive (DHE), a part of the Ministry of Defence. DHE undertook a restructure, as part of which 530 employees were placed into a redeployment pool and given priority for any vacancies at their existing grade. The work being performed by Mr Coles was subsequently advertised as a vacant post. The post was visible to all internal candidates including Mr Coles, although he did not look at the advert and neither did he apply for the role. An internal applicant from the redeployment pool applied for and was appointed to the position. As Mr Coles' services were no longer needed, he was given notice that his assignment would end.
Mr Coles brought claims in the employment tribunal based on breach of the Agency Worker Regulations ("the AWR") and the Temporary Agency Workers Directive ("the Directive"). He claimed that DHE had failed to allow him access to details of the vacancy and had denied him the opportunity to apply for the role. The tribunal concluded that a vacancy had arisen about which Mr Coles was entitled to be informed. However, the rights conferred by the AWR and the Directive (which was directly applicable since the tribunal had concluded that the Ministry of Defence was an emanation of the state) were limited to provision of information and did not confer the right to be considered for any such vacancy on an equal footing with existing employees of the end user. There was nothing in either the AWR nor the Directive which would prevent an employer from giving priority to employees whose roles were at risk of redundancy (in preference to agency workers). Mr Coles appealed to the EAT.
The key issue for determination by the EAT was whether the AWR and/or the Directive conferred anything more than a right to provision of information regarding vacancies at the end-user. Mr Coles argued that the legislation gave him the right to be considered for any such vacancies on an equal footing with permanent employees because of the words "the same opportunity as comparable workers". He asserted that DHE should have given him the same status as comparable permanent employees in the redeployment pool including a guaranteed interview. The EAT found that it was only in respect of working hours and pay that an agency worker needed to be treated in the same way as a permanent employee. There was nothing in the AWR or the Directive which could form a basis for concluding that the words "same opportunity" gave any additional rights, such as the right to have an interview or to be considered for employment.
What this means for employers
In this case the Mr Coles was trying to extend the scope of protection given to agency workers. The case makes it clear that the principle of equal treatment contained in the legislation does not give agency workers parity of status with permanent employees, other than in respect of working hours and pay. Agency workers do not, and should not expect to, have protection against losing their role in the event of redundancies.