Agency workers not entitled to apply for, and be considered for vacancies on the same terms as directly recruited employees

16 December 2020

The Employment Appeal Tribunal (EAT) held that agency workers are not entitled to apply for and be considered for vacancies on the same terms as directly recruited employees under the Agency Workers Regulations 2010 (AWR).

With thanks to Daniel Barnett’s Employment Law Bulletin.

The case in question is that of Angard Staffing Solutions Ltd & Anor v Kanor & Anor, in which the agency workers submitting the claim were supplied by the respondent to Royal Mail, who stopped them from applying for vacancies unless they were externally advertised.

Regulation 13 of the AWR means that agency workers have the right to be notified by their hirer of any relevant vacant job posts, to provide them with the same opportunity as a comparable worker of securing permanent employment with their hirer.

The EAT held that this does not mean that agency workers have the right to be able to apply for and be considered for internal vacancies on the same terms as those employees who are directly recruited employees. Instead, the EAT maintained that it is a right to be notified of the vacancies on the same basis as directly recruited employees, along with the right to be provided with the same information about the vacancies as the directly recruited employees.

Regulation five grants agency workers with the same basic working and employment conditions as they would have been entitled to if they had been directly recruited by the hirer. The EAT held that this regulation had not been breached in respect of:

  • Agency workers’ shifts lasting longer than direct employees, as agency workers are not entitled to work the same contractual hours as comparable directly recruited staff
  • Failure to provide agency workers with training that mirrors that provided to employees during working time
  • Affording direct employees first refusal of overtime
  • The timing of rest breaks

 


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