Temporary agency workers are entitled to certain rights while they are assigned to work for clients (who are also known as hirers).
Some rights apply from the very start of their assignment (known as “day one” rights) and some only apply once the agency worker has been working in the same role for the same client/hirer for 12 weeks. These rights are set out in the Agency Workers Regulations 2010 (“AWR”).
One such “day one” right is 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”. Essentially this means that if there is a job vacancy within the client’s workplace (i.e to work directly for the client rather than via an agency), then any agency workers who are assigned to that workplace have the right to be informed of the vacancy. The AWR suggest that this information could be provided by a general announcement in a suitable place in the hirer's establishment, such as on a notice board.
The Court of Appeal has recently confirmed that this right is only a right to be informed of the vacancy; it does not mean that the agency worker is entitled to apply for the vacancy, or to be considered for the vacancy on the same terms as the client’s own internal staff.
This was confirmed in the recent Court of Appeal case of Kocur v Angard Staffing Solutions Ltd and another. Mr Kocur was an agency worker employed by Angard Staffing Solutions Limited (Angard). Angard supplied Mr Kocur to work for Royal Mail (the client/hirer) in one of Royal Mail’s mail centres. Royal Mail also had some of its own directly-employed staff who worked at the mail centre in addition to temporary agency workers such as Mr Kocur.
Royal Mail advertised vacancies for any permanent positions at the mail centre on a notice board. However, they offered the vacancies first to direct employees of Royal Mail; agency workers were not eligible to apply. If vacancies were advertised externally, then the agency workers were entitled to apply, in competition with other external applicants.
Mr Kocur brought a complaint in the Employment Tribunal, alleging that this breached his rights under the AWR because, even though he had been notified of the vacancies on the notice board, he wasn’t allowed to apply for them. Initially the Employment Tribunal agreed with him, but after Royal Mail appealed, both the Employment Appeal Tribunal and subsequently the Court of Appeal found in favour of Royal Mail and made it clear that Mr Kocur was only entitled to be informed of any vacancies; he did not have a right to apply for them.
This is a welcome clarification for agencies and hirers. Whilst at first, this decision may seem a little counter-intuitive, the Court pointed out that the right to be informed of a vacancy (even if there is no right to apply for it) can bring advantages; it means that agency workers might have advance notice or more information about vacancies than external candidates.
It is important, however, for agencies and hirers to remember that the right to be informed of vacancies exists, as this right is often overlooked. Furthermore, advertising vacancies on an internal intranet, for example, which agency workers may not have access to, is not acceptable. The advertisement needs to be located somewhere that agency workers can see it, such as on a physical noticeboard or by way of an email.
If you have any questions about agency workers’ rights, please contact the Recruitment and Workforce Solutions team.
