The duty to notify agency workers of permanent roles

The Agency Workers Regulations 2010 require organisations using agency workers to notify the agency workers of any job vacancies they may have. In the recent case of Coles v Ministry of Defence [2015] the Employment Appeal Tribunal (EAT) had to decide whether this obligation meant that agency workers should have a right to apply for the job, or to get preference over other applicants, whether employees of the organisation or outsiders.

In this case Mr Coles was engaged as an agency worker. The MoD underwent a major restructuring which displaced 530 permanent employees. One of those displaced employees was offered the role which Mr Coles was performing and he accepted it. Mr Coles was therefore notified that there was no longer any requirement for him to perform the role as an agency worker. He brought a claim in the Employment Tribunal arguing that the provisions of the Agency Workers Regulations meant that he should not only be informed of the vacancy, but that he should have a right to be considered for the role on an equal footing with permanent employees. This argument was rejected by the Employment Tribunal and Mr Coles appealed.

The EAT had little sympathy for Mr Coles and refused to interpret the requirement under the Agency Workers Regulations for agency workers to be notified of vacancies to mean any more than that. They rejected the notion that the requirement to notify agency staff of vacancies involved a further implied term that they should have the right to apply for the role. They also refused Mr Coles’ request to refer the question to the European Court of Justice.

This case illustrates the lack of protection which the law gives to agency workers. As we discussed in our recent article on the case of Smith v Carillion [2015], agency workers do not get employment rights against the end user of their services, and now the Coles case shows how limited some of the rights under the Agency Workers Regulations are.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.