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A step too far – Court of Appeal confirm the extent of agency workers’ right to be notified about relevant vacant positions

In the recent case of Kocur v Angard Staffing Solutions Ltd, the Court of Appeal held that the Agency Workers Regulations 2010 (“AWR”) only afford an agency worker with the right to be notified of relevant vacant positions. The Regulations do not extend to providing an agency worker with the right to apply or be considered for such a position.

The Law:

Under Regulation 13(1) AWR 2010, during an assignment, an agency worker has the right to be informed of any relevant posts with his hirer. The intention of this is to provide the agency worker with the same opportunity as a comparable worker to find permanent employment within the hirer.

This right comes into play from the worker’s first day of working for the hirer.

The Facts:

Mr Kocur worked as an agency worker for the Royal Mail Group Ltd. Mr Kocur was supplied to the Royal Mail via its wholly-owned subsidiary employment agency, Angard Staffing Solutions. Angard’s role was to provide agency workers to assist with the fluctuating demand for postal workers on a day-to-day basis.

When internal vacancies became available within the Royal Mail, they were placed on its notice board and first offered to operatives holding a permanent position. If there were no takers, the position was opened up to other directly employed staff in less secure positions, and then finally opened up to the public. Agency workers were not eligible to apply in the first instance; only being permitted to apply if and when the vacancy was externally advertised. Under these circumstances, the agency worker would likely face competition from other external applicants.

Amongst a series of 12 initial complaints to the Employment Tribunal (“ET”), Mr Kocur brought a claim for a breach of Regulation 13 on the grounds that he was not allowed to apply for a permanent “Operational Post Grade” role at the same time as Royal Mail’s directly-recruited and permanent staff.

Mr Kocur successfully argued in the ET that the rights afforded under Regulation 13 should extend to him not only being notified of any relevant vacant positions, but also for him to be entitled to apply and be considered for them on the same basis that a directly-recruited and permanent member of staff would.

However, this was overruled in the Employment Appeal Tribunal (“EAT”). The EAT combined a strict interpretation of Regulation 13 with consideration as to the differing relationships between an employer and  employee and a hirer and agency worker. Upon rationalising the need for greater flexibility in the latter relationship, the EAT held that the right could not extend past that of notification. Regulation 13 therefore did not encompass the right to apply or be considered for the notified position.

The Court of Appeal (“COA”):

The COA, agreed with the EAT having conducted a detailed analysis of the drafting of Regulation 13. Regardless of whether a strict, literal or purposive approach to interpreting Regulation 13 was used, the outcome was the same, and the appeal was dismissed.

Notably, in reaching this decision, the COA held that if Parliament had intended for the right to extend to the agency worker’s application and consideration for the notified position, they would have had to  expressly write that into the Regulations. As it stood, the scope of Regulation 13 was clear and, as such, is limited to notification about the vacant position. 

Further, the COA disagreed with Mr Kocur’s argument that a right to be notified, but not considered, would make Regulation 13 meaningless. Alongside the fact it ensured that agency workers were aware of potential internal opportunities, the COA also stated that:

            “A right to be notified is a real advantage and this is not gained simply by pointing out that the right could have been more generous and far reaching… [I]n the real world this does confer advantages, even if modest, because… it extends the right to be given the same information about the vacancies as are given to internal candidates and confers an advantages in that agency workers might have advance or more direct notice, if for instance [the position] is also advertised to external candidates”. 

Our Comment:

In balancing the needs of agency workers for security against the inherent desire for flexibility for hirers using agency workers, this decision brings welcome clarification as to the extent of the rights afforded to an agency worker and will assist in future recruitment processes.

For more information on this article, please contact Su Apps in our Employment team.

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