Written by Brabners LLP
Agency workers are entitled to certain rights while they are assigned to work for end clients (aka “hirers”). Some rights apply from the very start of their assignment (known as “day one” rights) and some only apply once the agency worker has been working in the same role for the same hirer for 12 weeks. These rights are set out in the Agency Workers Regulations 2010 (“AWR”).
One such “day one” right is 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”. Essentially this means that if there is a job vacancy within the end client’s workplace (i.e to work directly for the end client rather than via an agency or umbrella), then any agency workers who are assigned to that workplace have the right to be informed of the vacancy. The AWR suggest that this information could be provided by a general announcement in a suitable place in the hirer’s establishment, such as on a notice board.
The Court of Appeal has recently confirmed that this right is only a right to be informed of the vacancy; it does not mean that the agency worker is entitled to apply for the vacancy, or to be considered for the vacancy on the same terms as the hirer’s own internal staff.
Kocur v Angard Staffing Solutions Ltd and another
Mr Kocur was an agency worker employed by Angard Staffing Solutions Limited (Angard). Angard supplied Mr Kocur to work for Royal Mail (the end client/hirer) in one of Royal Mail’s mail centres. Royal Mail also had some of its own directly-employed staff who worked at the mail centre in addition to temporary agency workers such as Mr Kocur.
Royal Mail advertised vacancies for any permanent positions at the mail centre on a notice board. However, they offered the vacancies firstly to direct employees of Royal Mail; agency workers were not eligible to apply. If vacancies were subsequently advertised externally, then the agency workers were entitled to apply, in competition with other external applicants.
Mr Kocur brought a complaint in the Employment Tribunal, alleging that this breached his rights under the AWR because, even though he had been notified of the vacancies on the notice board, he wasn’t allowed to apply for them. Initially the Employment Tribunal agreed with him, but after Royal Mail appealed, both the Employment Appeal Tribunal and subsequently the Court of Appeal found in favour of Royal Mail and made it clear that Mr Kocur was only entitled to be informed of any vacancies; he did not have an automatic right to apply for them.
This is a welcome clarification for agencies and hirers. Whilst at first, this decision may seem a little counter-intuitive, the Court pointed out that the right to be informed of a vacancy (even if there is no right to apply for it) can bring advantages; it means that agency workers might have advance notice or more information about vacancies than external candidates.
Conclusion
It is important for umbrellas, agencies and hirers to remember that the right to be informed of vacancies exists from day one of an assignment, as this right is often overlooked. Advertising vacancies on an internal intranet, for example, which agency workers may not have access to, is not acceptable. The hirer needs to place the advertisement somewhere that agency workers can see it, such as on a physical noticeboard or by way of an email.
Although strictly the duty to ensure that agency workers are informed of vacancies is a responsibility of the end client, umbrella companies should be aware of the existence of this right and encourage their clients to honour it.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
Brabners is a Limited Liability Partnership