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Employers entitled to redeploy permanent employees in agency workers' posts

Posted by TonyBrownEmploymentSolicitor on August 3, 2015

Does EU law give agency workers the same opportunity to be considered for vacancies as the employer’s permanent staff?

Not according to a recent decision of the EAT that, while the Agency Workers Regulations 2010 (AWR) require employers to provide agency workers with information about relevant vacancies, they do not require equality of opportunity during the selection process with internal applicants who are permanent members of staff.

In that case, the Claimant had been an agency worker for the MoD since 2005. In 2013, the MoD carried out a substantial restructure which resulted in its having to find redeployment opportunities for 500 permanent staff whose jobs had become redundant. 

Under its recruitment policy, priority for vacant jobs is given to internal applicants and those jobs are opened up to external applicants only at a later stage.

The Claimant discovered that the post he was performing as an agency worker was being advertised on the MoD’s Jobs website and, when he enquired, he was told that he could not apply for the job until it was advertised externally.

The post was given to an internal applicant who had been put in the redeployment pool and had applied for the post. The Claimant’s assignment was therefore terminated.

The Claimant argued before the ET that, although he had been given information about the post and was free to apply, the MoD’s recruitment policy meant that his application would have been rejected on the basis that he was ineligible. He argued that the failure to allow him to apply for the post breached his right to 'equal treatment' in basic working and employment conditions under the EU Agency Worker Directive.

Legal principles
Under the Agency Workers Regulations 2010:
"An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer."

AWR implements the EU Temporary Agency Work Directive which states that:
“Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment. Such information may be provided by a general announcement in a suitable place in the undertaking for which, and under whose supervision, temporary agency workers are engaged.”

ET’s decision
Rejecting the Claimant’s claim, the ET ruled that, while the AWR requires employers to provide agency workers with information about relevant vacancies, they do not require equality of opportunity during the selection process with internal applicants who are permanent members of staff.

In this case, the Claimant had access to the MoD’s Jobs website, which was found to be an appropriate way of informing staff of vacant posts given the size of the MoD.

Crucially, AWR does not prevent an employer from giving priority to permanent staff who are placed in a redeployment pool during a restructuring. Indeed, a fundamentally good working practice is to allow employers to protect permanent employees' positions in any restructuring exercise.

Dismissing the Claimant’s appeal, the EAT held that for agency workers the principle of equal treatment is confined to working time and pay. The right of agency workers in AWR to be informed of vacancies is a valuable right in itself and to refuse agency workers interviews would not breach any duty under the EU Directive.

Comment
The Agency Workers Regulations 2010 (AWR) entitle agency workers to information about vacancies in the hirer's organisation, to give them the same opportunity as other workers to find permanent employment. They do not prescribe what should happen during the recruitment selection process after the information on vacancies has been provided. However, according to this decision, AWR does not require employers to provide opportunities for agency workers to find alternative employment beyond giving them information about vacancies.

While employers should recruit the best person for the job, an employer would be quite entitled to favour a potentially redundant permanent employee with the required qualifications over an agency worker already working for the employer, even if that means the end of the agency worker's assignment.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

Warning - this bulletin is provided for information only and is not a substitute for legal advice. You should obtain specific, personal advice about your circumstances and not rely on the information or comments in this bulletin.