The Court of Appeal has agreed with a previous EAT decision and confirmed that the Agency Worker Regulations 2010 should be interpreted narrowly: they only provide a right for agency workers to be informed of vacancies.

Background

The Agency Worker Regulations (‘the Regulations’) provide agency workers with various rights, including:

  • the right to the same basic working and employment conditions as they would be entitled to as an employee of the hirer; and

  • the right to be informed of any relevant vacant posts with the hirer.

Facts

Angard Staffing Solutions Limited (ASS) is an employment agency which is a wholly owned subsidiary of Royal Mail. ASS provided agency workers to Royal Mail, reacting to Royal Mail’s fluctuating demand for postal workers.

Multiple agency workers employed by ASS, but who were supplied to work in one of Royal Mail’s centres, complained that both ASS and Royal Mail had breached the Regulations, including:

  • breach of the agency workers’ entitlement to the same basic working and employment conditions to which they would be entitled for doing the same job as if had they been recruited by Royal Mail; and

  • breach of the Agency Workers’ entitlement to be informed by Royal Mail of any relevant vacant posts.

The agency workers succeeded in two of five of their claims, against which ASS and Royal Mail appealed. The workers also appealed against some of the Tribunal’s findings towards them.

In 2021, the Employment Appeal Tribunal (EAT) found that the right to be informed of vacancies by the hirer did not mean that the agency workers had a right to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees. The right was limited to the Agency Workers being notified of the vacancies on the same basis of directly-recruited employees.

The case was further appealed to the Court of Appeal.

Decision

The Court of Appeal upheld the EAT’s decision and confirmed that the Regulations should be interpreted narrowly.

The Court said that the Regulations only entitle agency workers to be informed of job vacancies on the same footing as directly recruited employees. However, rights under the Regulations do not extend as far as entitling agency workers to be considered for vacancies equally with directly recruited employees.

In coming to its decision, the Court of Appeal noted that the Regulations (read in the light of the Directive from which they derive) did not support a wider interpretation. The protections afforded to agency workers under the Regulations are minimal, and there is no scope to find they include a right to apply for a vacancy.

The Court of Appeal went on to say that the EAT’s analysis was correct in that, if agency workers had the right to apply and be considered for vacancies, that would prevent organisations from being able to give priority to their directly employed staff. It did not appear that the government intended this to be within the scope of the Regulations.

Comment

The Court of Appeal’s decision will be welcomed by all organisations which hire agency staff, as the Court has endorsed the EAT’s narrow approach to interpreting the Regulations. 

This means that agency staff are not entitled to be treated equally with direct employees in respect of internal vacancies. The only requirement for hirers under the Regulations, in respect of vacant roles, is to keep agency staff updated and informed.

The Court felt that to interpret the Regulations otherwise would go beyond what Parliament intended and may prevent hirers from giving preference to directly employed staff when selecting candidates.

Judgment – Click Here

Contributor: Sarah Maddock

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This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.

Date published

02 March 2022

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