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Coles v Ministry of Defence UKEAT/0403/14; (2015) EMPLR 054
31 July 2015
Employment Appeal Tribunal (EAT)
Employers do not breach the Agency Workers Regulations or the Agency Workers’ Directive if they give priority to redundant permanent employees over agency workers in a redundancy redeployment exercise.
The MoD carried out a restructure as a result of which some of its employees were to be made redundant. Those employees were put into a ‘redeployment pool’. One of those employees was given a position which C, an agency worker, had held. C was informed of the vacancy but did not apply for it. If he had applied, he would not have got the job because priority was given to those in the redeployment pool. C argued that this breached the MoD’s obligations under regulation 13 of the Agency Worker’s Regulations 2010 and Articles 5 and 6 of the Temporary Agency Worker Directive.
Regulation 13 gives agency workers the right to be informed of any relevant vacant posts ‘to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer’. Article 5 requires hirers to give agency workers the same basic working and employment conditions as permanent employees; and Article 6 is largely the same as regulation 13.
The EAT held that the right under regulation 13 and Article 6 is merely to be informed of vacancies. There is no right for agency workers to be given priority over permanent employees in a redeployment exercise (although the Claimant was merely asking to be allowed to apply on the same footing as a permanent employee).