Agency workers do not automatically have the right to be invited to apply for a directly employed vacancy with the organisation they work for, the Court of Appeal has found.
Lord Justice Green said that legislature would have been more explicit had a right to apply for permanent positions been intended under the Agency Worker Regulations 2010 and the corresponding EU directive.
The case concerned an agency worker, Mr Kocur, who worked in Royal Mail’s Leeds mail centre. He was employed by Angard Staffing Solutions, an employment agency which provides staff exclusively to Royal Mail – its parent company.
When vacancies for permanent positions at the Leeds mail office became available, they were put up on a notice board and offered first to other permanent employees and to those in a “reserve class” of postal operatives. Agency workers were not eligible to apply for the posts. They could however apply for vacancies when they were advertised externally.
Kocur was involved in a lengthy dispute with Angard Staffing Solutions about his worker status, which culminated in the Employment Appeal Tribunal (EAT) ruling in his favour that a group of workers he was a part of were agency workers and entitled to the same employment rights as Royal Mail employees.
In his latest case before the Court of Appeal, Kocur challenged the EAT’s ruling that Royal Mail did not have to give Kocur and other agency workers an opportunity to apply for permanent positions it was recruiting for when they were advertised internally.
He argued that the EAT’s interpretation of the Agency Worker Regulations (AWR), which brought the Temporary Agency Workers EU Directive into law in the UK, had been too narrow.
He claimed that the EU directive implies that agency workers have a right to apply for those jobs, in addition to the right to be notified. His interpretation settled around the French language version of the directive, which refers to “obtenir” (obtain) rather than “trouver” (find) in relation to work.
In handing down the Court of Appeal’s ruling last week, Lord Justice Green said the court agreed with the EAT that an employer does not have to invite agency workers to apply for permanent roles.
“The issue arising on this appeal is a short point of interpretation. I should start by recording that I agree with the EAT. In my judgment neither Article 6 of the Directive nor Regulation 13 AWR confer on an agency worker a right which goes beyond a right to be notified. It does not extend to a right to apply and/or to be considered for the notified post,” the judgment says.
A right to be notified is a real advantage and this is not gainsaid simply by pointing out that the right could have been more generous and far-reaching.” – Lord Justice Green
“A right to be notified is a real advantage and this is not gainsaid simply by pointing out that the right could have been more generous and far-reaching. In one sense it suffices to say that the right is simply what it is – a limited right to be notified.
“In the real world this does confer advantages, even if modest, because as the EAT pointed out, it extends to a right to being given the same information about the vacancies as are given to internal candidates and confers an advantage in that agency workers might have advance or more direct notice if, for instance, it is also advertised to external candidates.”
Lord Justice Green said that the appellant’s analysis of the French language version of the EU directive “does not assist” his case.
“Legislation designed to assist a temporary worker ‘obtain’ work does not, by use of that phrase alone, imply that the worker in question has some inalienable right to apply for a job which an employer does not wish to make available to that worker. When viewed in the context of all the other guides to interpretation it would run counter the purpose of the Directive to attach such a supercharged meaning to this one word which would justify preferring it to the narrower English counterpart,” the judgment says.
It adds that “the legislature would have legislated explicitly” had it intended to give agency staff an automatic right to apply for permanent jobs.