Agency workers and job vacancies

Angard Staffing Solutions Ltd and another v Kocur and others

In this case, the Employment Appeal Tribunal (“EAT”) clarified the protections afforded to agency workers with regards to their ability to apply for internal postings with an end user, and the extent to which they must be afforded equal working conditions to comparable direct employees.

The Claimants were agency workers employed by Angard, a subsidiary of Royal Mail (the Respondents). They brought a total of twelve Employment Tribunal (“ET”) claims against the Respondents with respect to alleged breaches of the Agency Workers Regulations 2010 (“AWR”).

One of the claims was for a breach of regulation 5 AWR, which provides agency workers with the right to the same basic working and employment conditions (including as to the duration of working time) as they would be entitled to as an employee after 12 weeks on an assignment. The Claimants asserted that agency workers’ shifts were 12 minutes longer than comparable employees’ shifts and this was contrary to regulation 5. They also claimed breach of regulation 13 AWR, under which agency workers have the right to be informed of any relevant vacant posts with the end user, on the grounds that they were told they were ineligible to apply for internal vacancies posted on the Leeds Mail Centre notice board, and could only apply for external postings in the same way as external candidates.

The EAT found in favour of the Respondents, holding that:

  • the right to be informed of internal vacancies under regulation 13 does not constitute a right to be entitled to apply for, and be considered for, these vacancies on the same terms as employees; and
  • under the AWR there is no requirement that shift lengths must be equal for agency workers and comparable employees, although if the hirer has a maximum shift length for employees then it must have the same in place for agency workers. The entitlement to equal treatment in respect of the duration of working time under regulation 5 only means that if the end user sets a maximum period when a comparable employee could be required to work, it cannot set a different maximum for agency workers.

This case provides useful clarification to employers who hire agency workers, suggesting that the ET should take a pragmatic approach to the comparison between agency workers’ working conditions and those of comparable direct employees, and that identical treatment is not required for compliance with the AWR.