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Court of Appeal limits agency workers’ rights

Posted
March 11, 2022
Employment Law

The Agency Workers Regulations 2010 (AWR) require employers to treat agency workers in a manner consistent with the treatment afforded to the directly employed. But how far does this principle stretch in relation to the right to be informed of and apply for permanent employment?

Right to be informed only?

The AWR include provisions which oblige businesses to inform agency workers of any vacant positions that arise during the period the agency worker is assigned to them. 

In the case of Kocur v Angard Staffing Solutions Limited, a question arose as to whether, as well as informing agency workers of the existence of job vacancies, businesses are also required to consider their applications. Mr Kocur (an agency worker) was working on assignment with Royal Mail. Vacancies were posted on notice boards for all to see. However, applications from existing employees were considered before any others. Afterwards, applications from agency workers were processed alongside those from other ‘external’ candidates. Mr Kocur argued that Royal Mail was breaching the AWR by failing to consider his application for permanent employment alongside those submitted by the directly employed.

The Employment Tribunal found in Mr Kocur’s favour, but this decision was overturned by the Employment Appeal Tribunal. The Claimant appealed to the Court of Appeal. Having considered the arguments on both sides, the Court of Appeal found against Mr Kocur. The AWR were undoubtedly intended to achieve greater parity between the rights of agency workers and those of the directly employed. However, they are not comparable in every respect. Both the EU directive and the AWR refer simply to the narrow right for an agency worker to be informed of permanent vacancies. It was not appropriate to imply into the regulations an additional right to apply for and be considered for these permanent roles.

A hollow right?

Agency workers might question what value there is in a right to be informed of vacancies for which they cannot necessarily apply. Nevertheless, the law is clear that it is a right to be informed only. 

If you are in need of guidance on the ambit of the Agency Workers Regulations 2010 and how they affect your business, please get in touch.

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