The Agency Workers Regulations 2010 (AWR) provide for the right to be notified of and be given details about internal vacancies only – so ruled the Court of Appeal (CA).
In Kokur v Angard Staffing Solutions Ltd & Another, the CA had to consider whether agency workers had to be informed by the hiring business of any vacancies (as contained in Regulation 13), and whether this extended to include a right to apply on the same terms and conditions as comparable directly sourced employees.
Employment Tribunal
At first instance, the Employment Tribunal concluded that such a right was implied. The Employment Appeal Tribunal (EAT) disagreed, stating that the right was limited to notification of vacancies only and be given the same level of information as directly sourced employees.
The matter proceeded to the CA, and they confirmed the EAT’s decision. They took the view that The AWR do not expressly stipulate whether the right to apply extends to being offered the job on the same terms as a directly sourced employee. Without express wording, the CA took a practical and pragmatic approach to ensure a balanced view without creating any conflict between interested parties. Furthermore, they felt that Reg 13 right was a right available from Day 1 - why should an agency worker, who was working for the hirer for a day or two, be entitled to the same rights to apply and be considered for a vacancy on same terms as a directly sourced employee? It would be grossly unfair if they did.
This narrow and stricter interpretation of the AWR will provide some comfort to employers but still confer some advantages towards agency workers. Whilst agency workers provide valuable and a flexible source of labour, the obligation to offer them jobs on the same terms as other staff could have negated that flexibility.
This article is intended as a brief guide, and each case will need to be interpreted on its own merits. At Quest, we have the necessary knowledge, experience, and ability to offer you the initial advice and guidance, including a specialist consultancy service. For more information please contact us on 01455 852028.
