Last reviewed 20 October 2015
In Coles v Ministry of Defence, the Employment Appeal Tribunal (EAT) looked at the scope of Regulation 13 of the Agency Workers Regulations (AWR), which provides that agency workers have the right from day one to be informed of relevant vacant posts with the hirer, to give them “the same opportunity as a comparable worker to find permanent employment with the hirer”.
Mr Coles was an agency worker who was supplied to work at the Defence Housing Executive (DHE), which was part of the Ministry of Defence. In 2013, the DHE underwent a substantial restructuring programme, which resulted in 530 employees being placed in a redeployment pool. These employees had priority over other applicants for any vacant post on a level transfer within their department, which was known as a “stage 1” status. In May 2013, the post Mr Coles was covering was advertised at stage 1 and was visible to any internal candidate in the DHE including Mr Coles (had he looked for it). An employee who had stage 1 status applied for it and was appointed. Mr Coles did not apply and his assignment ended as a result of her appointment. He claimed that the DHE was in breach of the AWR and the Temporary Agency Worker Directive (as MOD was an emanation of the state) in failing to allow him access to details of the vacancy and in denying him the opportunity to apply for his position. He alleged this meant that DHE had breached his rights to equal treatment in basic working and employment conditions.
An employment tribunal rejected his claims and refused to make a reference to the Court of Justice of the European Union (CJEU). Mr Coles appealed.
The EAT dismissed the appeal. It found that the principle of equal treatment in the Directive was restricted to basic working and employment conditions, such as working hours and pay and that there is no general right for agency workers to be treated no less favourably than comparable permanent employees. It then looked at the scope of the right to be informed of vacancies under regulation 13 and in particular the meaning of the words “the same opportunity as a comparable worker” and held that this was aimed at ensuring the right to information about vacancies would not be devalued by, for example, providing it at a later date or time than to permanent employees. The EAT held that there was nothing in AWR or the Directive that gave agency workers the right to have a guaranteed interview or to be considered for employment. It also declined to make a reference to the CJEU.
This is a helpful decision for employers and clarifies that the right of agency workers to information about vacancies is limited to ensuring that it is available to them at the same time and form as for permanent staff. This right applies from day 1 of an agency worker’s assignment and employers should, therefore, ensure that details of any vacancies are equally accessible for agency workers and employees.
The decision also confirms that agency workers do not have a right to be considered for vacancies on an equal footing with existing employees. Therefore, where employers are going through a redundancy process they will not be in breach of the AWR if they give their permanent employees who are at risk of redundancy priority over the vacancies and decline to interview or consider agency workers for employment.