In a recent finding (Coles v Ministry of Defence), the Employment Appeal Tribunal (EAT) has confirmed the extent of agency workers’ rights under the Agency Workers Regulations 2010 in relation to being considered for vacancies alongside permanent employees.
The Regulations give agency workers the right to be informed of vacancies in the end-user company for which they work. However, the EAT has confirmed that the right to be provided with information about a vacancy does not mean also having the opportunity to apply for a vacancy on an equal footing. An agency worker’s right under Regulation 13 is therefore simply a right to information: it does not grant an agency worker any right to be shortlisted or for the position or to be given the same priority treatment afforded to the employer’s own employees.
The facts of the case relate to a redundancy situation, in which there was a pool of permanent employees seeking redeployment who would otherwise be facing redundancy. The case confirms that the employer was not prevented from prioritising those within the redeployment pool over temporary agency workers when appointing candidates to vacant posts.
If the Agency Workers Regulations are to be read in this way, then there is nothing to suggest that this principle would apply only in a redundancy situation. It appears therefore to confirm that a company may, as a matter of course, give preference to permanent employees over agency workers when considering applicants for vacant posts.