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16 October 2015

Full-time employees lawfully given priority over agency temp

The Agency Workers Regulations 2010 (AWR), which came into force on 1 October 2011, give effect in UK law to the EU Temporary and Agency Workers Directive. Under the AWR, workers who are supplied by an agency to work temporarily for and under the supervision and direction of a hirer are entitled to the same basic employment and working conditions as if they had been recruited directly once they have worked in the same job for the same hirer for a period of 12 calendar weeks. In addition, all temporary agency workers are entitled, from the first day of their assignment, to information on any job vacancies. 

However, in an important decision (Coles v Ministry of Defence), the Employment Appeal Tribunal (EAT) has confirmed that there is no general right for temporary agency workers to be treated no less favourably than an employee recruited directly. The principle of equal treatment is confined to working time and pay and the Ministry of Defence (MoD) did nothing wrong when it gave priority to its full-time employees when considering applicants for a position.

Mr Coles was working as a temporary technical liaison officer for the Defence Housing Executive (DHE), the estate management arm of the MoD, at a time when a substantial restructuring was underway. More than 500 directly employed staff had been warned of possible redundancy but had been placed in a pool of those awaiting redeployment to other roles.

The post that Mr Coles had been filling was to be made permanent. The job was advertised and this would have been visible to any candidate within the DHE. Mr Coles did not apply, however. In the event, employees in the pool were given priority when filling the post. He argued that this amounted to a breach of the AWR.

The Employment Tribunal (ET) rejected Mr Coles' contention that the Directive requires not only that information as to job vacancies be provided to agency workers but also that they be given the right to be considered for such vacancies on an equal footing with those employed directly.

The EAT dismissed his appeal against the ET's decision. Equal provision of information is what is stressed in the Directive, rather than equality in the job application process. Mr Coles was entitled to be informed of vacant posts in the permanent workforce, the right to such information being a valuable right in itself. The legislation afforded him neither a right to a guaranteed interview nor to any preference over direct employees. Nor could the priority granted to those in the redeployment pool be said to be a breach of his rights. The job of a temporary agency worker is by definition 'to plug a gap', and when permanent workers are subject to potential redundancy dismissal, it is the latter who should be protected.

Confident that the Directive seeks to provide equal treatment only insofar as basic working conditions are concerned, the EAT concurred with the ET and declined to refer the matter to the European Court of Justice for a preliminary ruling.

For advice on any related matters, contact Kathryn Fielder in the employment team. Call 01753 279029 or email employmentlaw@bpcollins.co.uk.

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