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Employment Law

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Veale Wasborough Vizards , 17 AUG 2015

Agency workers - right to be informed of permanent vacancies

Agency workers - right to be informed of permanent vacancies
Helen Hughes
Solicitor, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) has considered whether the right of agency workers to be informed about permanent vacancies extends to being considered for any permanent vacancy on an equal footing with permanent employees at risk of redundancy.

In Coles v Ministry of Defence, Mr Coles was an agency worker assigned to work for a Ministry of Defence (MoD) organisation. In 2013, the MoD went through a substantial restructuring, which resulted in 530 permanent employees being placed into a deployment pool. These permanent employees were to be given priority consideration for any permanent vacancies at their existing grade.

A permanent position became available in respect of the work already being performed by Mr Coles. The job was advertised internally, which Mr Coles would have been able to see, but he did not look at the advert and did not apply for the role. An employee from the redeployment pool did apply and was successful in getting the job. As a consequence of this position being filled, the MoD no longer needed Mr Coles' services so gave notice to him that his assignment would terminate. Mr Coles brought a claim in the Employment Tribunal (ET), arguing that the MoD had failed to comply with its obligation under the Agency Workers Regulations (the Regulations) to provide details of the vacant post which denied him the opportunity to apply for it. 

The ET dismissed Mr Coles' claim, holding that under the Regulations Mr Coles was only entitled to be informed about the job vacancy and this did not include a right to be considered equally with any permanent employees that may apply for the same role.

The EAT dismissed the appeal finding that UK and EU legislation on this point is clearly limited to agency workers' right to be informed of any permanent vacancies.

Best practice

This case is a useful reminder of the extent of rights of agency workers. The Regulations provide agency workers with the same rights as comparable permanent employees in terms of hours and pay; however, the legislation cannot be interpreted as giving agency workers the same status as permanent staff.

Employers should remember that they only have an obligation to inform agency workers of new permanent positions, but do not necessarily need to consider their applications on an equal basis with permanent employees.

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