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Does a temporary agency worker have the right to be awarded the permanent equivalent of their role?


Coles v Ministry of Defence UKEAT/0403/14/RN

The Employment Appeals Tribunal ("EAT") has ruled that under the Agency Workers Regulations 2010, an agency worker has the right to be informed of vacancies in the end-user’s workplace. However, this doesn’t mean that they have to be given preferential treatment when it comes to recruiting into permanent posts.

The facts

The claimant was supplied as an agency worker to the Ministry of Defence (MOD).  The MOD underwent a substantial restructure in 2013 and a number of permanent employees roles were placed into a redeployment pool.  A permanent position (the agency worker’s role) became available and was advertised internally.  The agency worker did not apply for it, although the advert was displayed on noticeboards to which he had access. He was not therefore offered an interview. An employee in the redeployment pool did apply and was appointed to the position. There was no longer a need for the agency worker’s services and his appointment was therefore terminated.

The claimant alleged that the MOD had failed to allow him access to details of the vacancy and denied him the opportunity to apply for the role. He argued that he should have been treated on a par with the permanent employee and not only informed of the vacancy but given a right to apply for it and be interviewed.

Decision

The Employment Tribunal disagreed.  It concluded that the right of agency staff was limited to the right to be informed of job vacancies only. On appeal, the EAT concluded the same.  They concluded that agency workers had the right to be given the same opportunity to be informed of vacancies as other permanent staff i.e. through access to job adverts etc., but not a right to be granted an interview or placed into the role.  The intention is to provide help to find alternative employment, not to secure it.

Comment

The case is of use to employers who face the dilemma when considering making redundancies and redeploying employees as to the extent of their obligations towards different types of staff.

Advice

If you wish to discuss this article further or require employment law advice generally, please contact:  Angela Gorton.

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