EAT decision strikes balance between rights and protections created under the Agency Workers Regulations 2010
One of the core principles of the Agency Worker Regulations 2010 (‘AWRs') is equal treatment for temporary agency workers to enjoy basic working and employment conditions at least equal to those that would apply if the agency worker had been recruited directly by the hirer to perform the same job. These rights usually begin after 12 weeks of continuous employment with the agency worker's hirer.
Regulation 13 of the AWRs provides that, during an assignment, an agency worker has the right to be informed by their hirer of any relevant vacant posts, giving the worker the same opportunity as a comparable worker who was hired directly to find permanent employment with the hirer. This right applies from the first day the agency worker works for the hirer.
An interesting recent decision of the EAT has considered the extent to which Regulation 13 AWR means that an agency worker can be treated differently to someone who has been hired directly by the employer in respect of advertising vacancies.
Two agency workers were employed by Angard and supplied to work in Royal Mail's Leeds mail centre. Whilst working there, they became aware of Royal Mail vacancies posted on the staff noticeboard. When the agency workers attempted to apply for the roles, they were told that they were ineligible and that they could only apply when the vacancies were advertised externally. At this point, if they did apply, they would be in competition with external applicants.
As part of a broader complaint, the agency workers brought a tribunal claim on the basis that being prevented from applying for the advertised positions was a breach of Regulation 13 AWR because they had not been given the same opportunity as a comparable worker who had been hired directly by Royal Mail to find permanent employment with Royal Mail.
At tribunal, the agency workers were successful on this point and Royal Mail and Angard appealed on the basis that the tribunal had misrepresented Regulation 13 AWR by finding that it extended to an obligation to grant an agency worker the same opportunity to apply for relevant vacant posts as a comparable worker rather than simply conferring the right to be informed about them.
The EAT held that the right under Regulation 13 AWR did not mean that an agency worker had a right to be entitled to apply and be considered for internal vacancies on the same terms as directly recruited employees. Reviewing the regulation wording, the EAT considered that there was a right to be notified of vacancies on the same basis as direct recruits and to be given the same level of information about the vacancies as direct recruits. The EAT found that this provided agency workers with the same opportunity as a comparable worker to find permanent employment with the hirer, which was required by Regulation 13 AWR.
Reviewing the original Directive wording underpinning the AWRs, the EAT also noted that the right being granted went no further than a right to be made aware of any vacant posts with the hirer. In particular, the EAT drew on key wording contained in the Directive suggesting that agency workers must be helped in having 'access to employment' but noting that the Directive was silent on how far that help must go.
The EAT was of the view that the right to be informed of vacant posts was a valuable right in and of itself. This is because the right places agency workers in a better position than the general public and provides them with as much information as direct recruits. Because of this, the EAT dismissed arguments that the right to be informed of vacant posts was ineffective if the workers could therefore not apply for them when they were advertised internally.
The EAT also highlighted that the relevant wording in the original Directive did not specify the class of comparable worker with whom the agency worker must have the same opportunity to find permanent employment with the hirer. As a result, the EAT found that agency workers must have the same opportunity as those employed anywhere else in the hirer's undertaking. In practice, the EAT considered that some directly recruited employees might be 'manifestly unsuitable' for an advertised position, meaning that the provision of information will be of no more benefit to them as it would be to an agency worker who is told that they are ineligible for it. On that basis, the EAT concluded that it is not possible to read into the directive a requirement that an individual who is notified of a vacancy must also be eligible to apply for it.
Finally, the EAT concluded on this issue that the intention of the directive was not to treat agency workers as though they are direct recruits of the hirer, rather the relationship between the agency workers and the hirer is more 'tenuous and flexible' than the relationship between directly recruited employees and the hirer, and commented that this is often to the mutual benefit of the agency worker and the hirer.
For these reasons, the appeal by Royal Mail and Angard was allowed.
Employers should be aware of the rights of agency workers to have access to the same facilities and broad engagement terms as directly recruited staff, and to be informed of relevant vacancies with the hirer.
On a plain reading of Regulation 13 AWR it is easy to see why the agency workers felt that they were being denied their rights. It seems counter-intuitive to say an agency worker has the same right to be notified of jobs but then to say they are not entitled to apply for them. However, the EAT has clarified that the right does not extend to a right to be able to apply for internally advertised jobs.
In this case Royal Mail did allow agency workers to apply for these roles once they were advertised externally, and in the specific circumstances of the case this meant that the agency workers were being treated no less favourably than anyone that the employer might then engage directly through an external recruitment drive. As noted by the EAT, agency workers who had advanced notice of job vacancies were put in an advantageous position compared to potential applicants outside the organisation. The fact that directly employed staff could apply for the job whilst it was advertised internally did mean that the agency workers were put at a comparable disadvantage, but this was not unlawful for the reasons explained by the EAT.
The decision of the EAT helpfully clarifies the extent of the hirer's obligations when it comes to informing agency workers of vacancies, including that the employer must give full information about the job, including salary rate, job descriptions and specifications, to the agency worker and not merely inform them of the position's existence.
Originally Published by Wrigleys Solicitors, January 2021
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