Businesses hiring agency workers must provide them with the same information about relevant vacancies as direct employees, but they don’t have to allow agency workers to apply for those vacancies on the same terms. That is the ruling of the Court of Appeal in Kocur v Angard Staffing and it is a very welcome one as far as hirers are concerned.
The case was brought by Dominik Kocur, an agency worker at Royal Mail. Under an agreement between Royal Mail and the Communication Workers Union, existing Royal Mail employees had priority for any permanent vacancies that arose. Although agency workers were notified of vacancies, they were only entitled to apply for them if those vacancies were advertised externally.
As Personnel Today reports, Kocur challenged the EAT’s earlier ruling that Royal Mail did not have to give him, and other agency workers, an opportunity to apply for permanent positions it was recruiting for when they were advertised internally. He argued that the EAT’s interpretation of Regulation 13 of the Agency Worker Regulations, which brought the Temporary Agency Workers EU Directive into law in the UK, had been too narrow. He claimed that the EU directive implies that agency workers have a right to apply for those jobs, in addition to the right to be notified. In other words, Regulation 13 is meant to be more generous.
The Court of Appeal rejected that. They said the fact that a right could have been more generous did not mean that it had no value. A right to be notified of vacancies conferred some distinct advantages on agency workers, particularly compared with external candidates for jobs, because it gave them the same information about the vacancies that internal candidates enjoyed. The Court of Appeal says that the EAT had got it right in its earlier ruling – the Directive is a carefully struck balance between improving the security of agency workers on one hand, and flexibility on the other, and that balance is properly reflected in the UK by Regulation 13.
So, let’s get some reaction to that. Emma Johnston has been looking at the Court of Appeal’s judgment and she joined me by phone from Glasgow:
Emma Johnston: “So I think, I think this case is a really useful reminder for the hirers in that the vast majority of the obligations under the Agency Worker Regulations tend to sit with the agency, however, there are a number that could also sit with the end user and sometimes clients assume that the main risk for breaching the Agency Workers Regulations sits with the agency and this case is a really good example of why that is not always the right assumption to make and that, actually, quite often in these types of cases, the hirer ends up involved in the litigation and so it's something that hirers should just be really aware of. So, this case is relatively unusual in the sense that it concerns regulation 13, which is an obligation which sits mainly with the hirer in terms of the need to, during an assignment, draw to the agency worker’s attention relevant vacant posts with the hirer and to give that agency worker the same opportunity as an employee with the hirer to find permanent employment. So, this is this is one of those obligations that primarily sits with the hirer and so it's quite important for clients to be aware of it.”
Joe Glavina: “The ruling has been welcomed by hirer’s who want the flexibility to treat agency staff differently from their permanent staff. So, any doubts about that approach seem to have been swept away by Court of Appeal in this case. Do you agree?”
Emma Johnston: “Yes, so I think it's a really interesting decision and it has provided some much-needed clarity on the ambit of Regulation 13. Whereas previously, there was an assumption that if you were providing agency workers with this information about these vacancies then the natural implication would then be that you had to allow them to apply and be considered for them in the same manner in which the hirer’s employees would be for these vacancies. The decision is very clear that that's not the case and that's helpful because what it does do is it allows the hirer to prioritise their own employees in situations where the law would otherwise generally expect that to be the case anyway. So, for example, in the Court of Appeal decision the Court of Appeal actually said it would be very odd if, in circumstances, for example, where a hirer’s employee was being made redundant and under normal circumstances there would be an obligation on the hirer to look for alternative employment for that individual, it would lead to slightly strange circumstances if, actually, Regulation 13 meant that the hirer couldn't prioritise their own employee in terms of finding them an alternative vacancy because they had to treat them exactly the same as an agency worker. So, it's now clear that there is a bit more flexibility for hirers in terms of prioritising their own employees for their vacancies.”
Emma made the point that whilst most of the obligations under the Agency Workers Regulations sit with the agency, sometimes the hirer can get drawn into the litigation and that’s something that hirers need to be alive to. In this case the agency, Angard Staffing Solutions, was 1st Respondent and the hirer, Royal Mail, was 2nd Respondent, so both were involved. We have put a link to that Court of Appeal judgement in the transcript of this programme.
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