Case update (3): Agency workers – extent of equality

compensatory award - scales balancing person and moneySummary: Are agency workers entitled to equal status with comparable permanent employees in being considered for a vacancy?

No, says the EAT in Coles v Ministry of Defence, available here.

Facts: The agency worker, Mr Coles, worked as a technical liaison officer under arrangements made between Giant Parkhouse Limited (G) and Building Recruitment Company Limited (B). B was an agency worker business which supplied, through G, a department of the Ministry of Defence (MOD) with services to provide estates management for RAF service personnel and service families’ domestic accommodation.

In 2013, a restructuring of the MOD resulted in 530 MOD employees being placed into a redeployment pool, to be given priority consideration for vacancies in the MOD at their existing grade. Such employees had priority over other applicants for a vacant post on a same-level transfer within their department (known as ‘Stage 1’).

An Estate Manager post was advertised at ‘Stage 1’ which was, in effect, the role Mr Coles had been carrying out. The job advert was visible to any candidate internal to the MOD who wished to be considered for it. It would have been visible to Mr Coles had he chosen to look for it but he did not apply for the position. A permanent employee in the redeployment pool successfully applied for the post and ‘Stage 1’ applied to her.

A consequence of the appointment was that the MOD no longer needed Mr Coles and he was given notice that his assignment would cease and the permanent employee would take over immediately afterwards.

Mr Coles brought a Tribunal claim for breach of the Agency Worker Regulations. Mr Coles argued that the MOD was in breach by failing to allow him access to details of the vacancy and denying him the opportunity to apply. Further, Mr Coles argued that the Agency Worker Regulations gave him the right, not simply to be informed about vacancies, but to be considered for any such vacancies on an equal footing with permanent employees and that he should have given him the same status as comparable permanent employees in the redeployment pool.

The Tribunal dismissed his claim and Mr Coles appealed to the EAT.

The EAT dismissed Mr Coles’ appeal. The EAT held that the Directive and the Agency Worker Regulations provide a right to information in order to give temporary agency workers the same chance as other workers to find permanent employment. However, this right does not extend to the terms on which there should be recruitment for any post.

The EAT held that if an employer wishes to give preference to permanent employees in respect of those being redeployed it is entitled to do so, and by doing so will not be in breach of the AWR or the Directive.

Implications: This case is an important reminder of the extent of the protection afforded to agency workers. Whilst the Agency Worker Regulations give agency workers equivalent rights to comparable employees as regards working hours and pay, the principle of equal treatment cannot be interpreted as giving agency workers equal status with permanent employees. Agency workers should not expect to have protection against losing their role in the event of redundancies.