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Court of Appeal: Agency workers' right to be informed of relevant vacant posts is limited to notification

17 February 2022

In the case of Kocur v Angard Staffing Solutions Limited and others the Court of Appeal has held that regulation 13(1) of the Agency Workers Regulations 2010 goes no further than conferring on an agency worker a right to be notified of relevant vacant posts.  

The law

The Agency Workers Regulations 2010 ("AWRs")

The focus of the appeal centres on regulation 13(1) of the AWRs which specifies that during an assignment an agency worker has the right from day one to be informed by the hirer of any relevant vacant posts with the hirer, and should be given the same opportunity as a comparable worker to find permanent employment with the hirer.  

Facts

Angard Staffing Solutions Limited is an employment agency which is a wholly-owned subsidiary of Royal Mail. Angard provides agency workers to Royal Mail to assist with the fluctuating demand for postal workers from day to day.  Mr Kocur was an agency worker for the purpose of the AWRs.

Mr Kocur raised a number of complaints to the Employment Tribunal under the AWRs.  Significantly for this appeal Mr Kocur brought a claim under regulation 13(1) of the AWRs on the basis that he was told that he would not be eligible to apply for internal vacancies notified to him on the Leeds Mail Centre notice board.  Mr Kocur could only apply for vacancies when they were advertised externally, and when he did so, he would be in competition with external applicants.

Employment Tribunal

Out of the initial 12 complaints made to the Employment Tribunal Mr Kocur was successful in five of them, including the regulation 13 AWRs claim.  Both Mr Kocur and the Respondent appealed against the decision.

Employment Appeal Tribunal (EAT)

The EAT held that the right conferred by regulation 13(1) of the AWRs, does not mean that the agency worker has a right to be entitled to apply for and be considered for, internal vacancies on the same terms as directly-recruited employees.

With reference to flexibility being at the heart of the relationship between hirers and agency workers, the EAT distinguished the relationship between hirers and agency workers from the relationship between hirers and direct recruits.  The EAT's reasoning stated that the whole point of using agency workers is the flexibility they provide to deal with fluctuations in demand. 

Mr Kocur appealed to the Court of Appeal with regard to the finding under regulation 13(1) of the AWRs.

Court of Appeal

The Court of Appeal agreed with the EAT and has dismissed the appeal.  The right set out in regulation 13(1) of the AWRs is limited to a right to be notified of relevant vacant posts and does not extend to a right to apply and/or to be considered for the notified post. 

The Court of Appeal carried out a detailed analysis as to whether Mr Kocur's contention that it is wrong to adopt a literal, and narrow, interpretation of regulation 13 was correct.  The Court concluded that the Directive does not purport to be more than it expressly provides for, namely a limited right to information. 

Comment

The Court of Appeal has sought to balance the competing demands of worker security and employer flexibility.  The decision provides helpful clarification for employers that the right of agency workers to be informed of vacancies under regulation 13 of the AWRs does not extend to the right to apply, and be considered, for internal vacancies on the same terms as employees who have been directly recruited by the hirer. 

If you need any assistance with regard to agency workers please do not hesitate to get in touch.  

Further Reading