366: Do agency workers have the right to apply or be considered for vacancies on the same terms as direct recruits?

In Kocur v Angard Staffing Solutions Ltd and others, the Court of Appeal considered Regulation 13 of the Agency Workers Regulations 2010 (AWR) which gives agency workers the right to be informed of vacancies with a hirer to give them ‘the same opportunity as a comparable worker to find permanent employment with the hirer’. However, the Court of Appeal have held that this provision does not give agency workers the right to apply and / or be considered for a vacancy.

Mr Kocur was an agency worker at Royal Mail. An agreement between Royal Mail and the Communication Workers’ Union gave existing Royal Mail employees priority over permanent vacancies. In accordance with Regulation 13 of the AWR, agency workers were notified of any permanent vacancies, but they were only entitled to apply for vacancies that were advertised externally. Mr Kocur brought an Employment Tribunal claim alleging that this breached the AWR and the intention behind the underlying EU Directive on Temporary Agency Work, because the right to be notified of any vacancies was meaningless unless he could also apply for them on the same basis as permanent Royal Mail employees.

The Employment Tribunal upheld Mr Kocur’s claim, concluding that the right to receive information on vacancies in Regulation 13 of the AWR implicitly includes the right to apply for them. However, on appeal, the Employment Appeal Tribunal disagreed, ruling that Regulation 13 only gives agency workers the right to be notified of vacancies on the same basis as directly recruited employees, not the right to apply for and be considered for those vacancies.

Mr Kocur appealed to the Court of Appeal, arguing that this interpretation is too narrow and renders the provision meaningless. The Court of Appeal has now dismissed his appeal, concluding that the AWR reflect both the literal wording and the deliberate policy choice of the EU Directive to ensure a pragmatic balance between protecting agency workers and giving hirers flexibility. If there had been an intention to provide agency workers with the right to apply for a vacancy, this would have been explicitly stated in the Directive. The UK could also have chosen to include more generous rights in the AWR but did not do so.

Subject to any appeal, hirers will welcome the decision not to expand the obligation to notify agency workers of vacancies beyond its literal interpretation. This judgment relies heavily on the Court of Appeal’s analysis of the EU Directive, which recognises that temporary workers are not comparable with permanent employees in all respects. If agency workers had the right to apply and be considered for vacancies, hirers would be unable to give priority to in-house candidates, a common practice in redundancy and other recruitment exercises.