UK: Agency Worker Right To Information About Relevant Vacancies Does Not Include Right To Apply

Businesses hiring agency workers must provide them with the same information about relevant vacancies as direct employees, but do not have to allow agency workers to apply for those vacancies on the same terms.

Update 20 February 2022: the Court of Appeal has now agreed with the Employment Appeal Tribunal that the agency worker right to information does not encompass a right to apply on the same terms as direct hires.

The Agency Workers Regulations 2010 give agency workers a right, from day one of an assignment, 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”.  In Angard Staffing Solutions v Kocur, the Employment Appeal Tribunal ruled that this right to information about a vacancy does not encompass a right to apply and be considered for the vacancy on the same terms as directly hired employees.  The hirer was therefore entitled to give preference to direct hires by advertising posts internally first and providing that agency workers could not apply unless and until they were advertised externally.

The EAT also held that it was not a breach of the regulations for agency workers to be given different shift lengths, break schedules, availability of overtime, opportunity for training during working hours, or information on payslips when compared with direct hires. These provisions were not covered by the right of agency workers (with 12 weeks' qualifying service) to the same basic terms and conditions in relation to pay and working time.  However, a term relating to when a pay rise was implemented would be covered. The issue was remitted to the tribunal to determine whether there was an implied term in the contracts of directly-hired employees that any pay increase would be implemented within a reasonable period of time and, if so, whether this was breached by implementing the pay rise for agency workers six months later than for direct hires.

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