CA decision on right of agency workers to be informed about vacancies

Tuesday 8th March 2022

The CA has held, in Kocur v Angard Staffing Solutions Ltd & anor, that the Agency Worker Regulations 2010 give agency workers the right to be notified of any vacancies by the hirer, but not the right to be able to apply and be considered for them during any period of priority given to permanent employees.

Agency workers brought successful claims in the ET related to breaches of the AWR 2010 by both Angard as their employer and Royal Mail as the hirer. Among other things, the ET held that there had been a breach of Regulation 13, which provides that:

an agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer”.

While permanent roles were posted on the Royal Mail noticeboard, only those already in permanent positions could apply until such time as the vacancies were advertised externally. The agency workers would then be in competition with all other external applicants. In the ET, the agency workers successfully argued that the right to be notified of a vacancy is meaningless without the right to apply and be considered for it.

Angard appealed, arguing the AWR requirement was simply to be informed of the relevant vacancies. The EAT allowed the appeal.

The CA agreed with the EAT, finding that the AWR imposed only a right of notification. The CA decided the Temporary Agency Workers Directive aimed to strike a balance between a variety of different competing objectives without creating any hierarchy of interests and therefore rejected the argument that Regulation 13 gives agency workers high priority relative to either permanent staff or the hirer.

The CA also noted that the EAT was correct when it highlighted several adverse consequences that would follow if Regulation 13 imposed obligations beyond just notification, such as potentially preventing an employer from giving preference to in-house candidates or employees selected for redundancy. If such consequences were intended, the legislation would have been explicitly about it.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.