The Court of Appeal has held that Regulation 13 of the Agency Workers Regulations 2010 (‘AWR’) does not give agency workers the right to be able to apply, and be considered, for vacancies on the same terms as the hirer’s directly recruited employees.
So, what’s the case?…
Kocur v Angard Staffing Solutions Ltd and anor
This case involves the interpretation of two provisions of the AWR:
Regulation 13(1): during an assignment an agency worker has the right, from day one, to be informed by the hirer of any relevant posts with the hirer, and should be given the same opportunity as a comparable worker to find permanent employment with the hirer; and
Regulation 5(1): the agency worker is entitled to the same basic working and employment conditions as they would be entitled to for doing the same job, had they been recruited directly by the hirer.
So, what happened?…
Angard Staffing Solutions Limited (‘Angard’) is an employment agency which is a wholly-owned subsidiary of Royal Mail, providing agency workers to Royal Mail in order to assist with the ever changing, day to day demands for postal workers.
The Claimant, Mr Kocur, was supplied by Angard to work in Royal Mail’s Leeds Mail Centre and was given regular work at the Leeds Mail Centre. He was an agency worker for the purpose of the Regulations.
Mr Kocur brought 12 claims in the Employment Tribunal, one of which was a claim under Regulation 13(1) (set out above) on the basis that he was informed that he was not eligible to apply for internal vacancies displayed on the Leeds Mail Centre notice board.
Mr Kocur was told that he could only apply for vacancies when they were advertised externally, and that when he applied, he would be in competition with external applicants.
What have the Courts said?…
Mr Kocur was successful in 5 of his 12 claims, including his Regulation 13 claim, at Employment Tribunal.
Both parties appealed the decision.
The Employment Appeal Tribunal (EAT) held that the right given by Regulation 13(1) does not mean that an agency worker is entitled to apply for, and be considered for, internal vacancies on the same terms as directly-recruited employees.
The EAT stated that the whole point of using agency workers is for flexibility, so that changes in supply and demand can be met. Flexibility is key with regards to the relationship between an agency worker and the hirer.
Mr Kocur appealed the finding under Regulation 13(1).
The Court of Appeal agreed with the EAT and dismissed the appeal. It established that the AWR do not intend to be more than what they specifically provide for; i.e. a limited right to information (the right to be notified of relevant vacant posts) and do not extend to the right to apply and/or be considered for the vacant post on the same terms as the hirer’s directly recruited employees.
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