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Should agency workers get preference for permanent roles?

The Employment Appeal Tribunal (EAT) has held Regulation 13 of the Agency Workers Regulations 2010 (“AWRs”) only entitles agency workers to be informed about relevant vacancies at an employer where they work. They are not entitled to be recruited preferentially. Article from Howes Percival.

Paula Bailey, Partner in the Employment Law team comments:”The AWRs have significantly increased the rights of agency workers. Understanding those rights and ensuring they are observed can be difficult for employers. This case is therefore helpful as it clearly explains what agency workers' rights are in connection with vacancies which become available and employers' obligations in that respect.”

A key objective of the AWRs was to provide equal access for agency workers to employment, collective facilities and vocational training.Reg 13 of the AWRs confirms that, from day one of their assignment, an agency worker has the right to be informed about any relevant vacancy so they are given the same opportunity as comparable permanent workers to find permanent employment. The EAT has ruled, however, that Reg 13 only provides agency workers a right to information about relevant vacancies, no more. Employers are not obliged to recruit agency workers in preference to others, nor are they prevented from redeploying permanent staff into vacant positions in preference to recruiting agency workers.

In Coles v Ministry of Defence (2015), Mr Coles was an agency worker engaged by the MOD. In 2013 the MOD restructured its workforce which resulted in a large number of permanent employees being placed at risk of redundancy. As a measure to avoid compulsory redundancies, the MOD decided permanent employees in need of redeployment should be given priority for any vacancies which became available.

When a permanent position became available at the MOD site where Mr Coles was working, the MOD advertised the role internally. Mr Coles had sight of the advert but did not apply. A permanent employee at risk of redundancy did apply and was appointed. As a result, the MOD no longer required Mr Coles' services and terminated his assignment.

Mr Coles brought a claim alleging that the MOD had not provided him access to the details of the advertised role and had denied him the opportunity of applying for it, which was a breach of Reg 13. He argued that he was entitled to be considered for internal vacancies on an equal footing as other permanent employees and the MOD's decision to give permanent employees preference was unlawful. The Tribunal rejected Mr Coles' argument and dismissed his claim.

The EAT dismissed Mr Coles' subsequent appeal. It held Reg 13 only gives agency workers a right to information about vacancies. Reference in Reg 13 to the “same opportunity” meant that information about vacancies must be available to both permanent employees and agency workers in the same way (i.e. advertised in the same way). It did not restrict the basis on which employers can offer vacancies or mean that agency workers should be offered permanent roles in preference to or on the same footing as other permanent employees.

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