Agency workers: right to be informed of relevant vacant posts is limited to notification

The Court of Appeal has held that there is no automatic right for agency workers to be permitted to apply for a directly employed vacancy with the hirer.

Kocur v Angard Staffing Solutions Limited and others

The Agency Workers Regulations 2010 (the “Regulations”) specify that during any assignment, or period of work for a company, an agency worker has the right to be informed of any relevant vacant posts with the hirer. The agency worker should be given the same opportunity as a comparable worker to secure permanent, direct, employment.

Angard is a wholly owned subsidiary of Royal Mail, which provides agency workers to Royal Mail to assist with fluctuating demand.  Kocur was an agency worker (as defined by the Regulations).

Kocur was notified of a vacancy via the notice board at the Leeds Mail Centre for an Operational Post Grade role.  The vacancy was the same role that he was carrying out on an agency basis.

Kocur was not permitted to apply for this role in the first instance.  The reason for this was that direct employees who were already in different permanent roles, or were in other less secure (but directly employed) roles, were permitted to apply first.  Kocur would only be able to apply for the role when it was advertised externally.

Kocur brought a number of claims to the Employment Tribunal including a breach of the Regulations on the basis that he had not been permitted to apply for the role at the same time as the comparable workers.  Kocur was successful in relation to this head of claim.

Angard appealed to the EAT (whilst Kocur also appealed various other points).

The EAT held that the right under the Regulations was limited only to the right to be notified of any vacancies directly with the hirer, and not to be entitled to apply or be considered for, internal vacancies on the same terms as directly-recruited employees.  The EAT considered that any other finding would have the effect of removing the flexibility afforded by agency staff to deal with fluctuating demand.

Kocur appealed unsuccessfully to the Court of Appeal.  The Court of Appeal reiterated that the Regulations create a right which is limited to a right only to be notified of relevant vacant posts.  It does not extend to a right to apply and/or to be considered for the notified post.