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Agency workers: Court of Appeal confirms limited scope of right to be notified about job vacancies

Posted on 18 February 2022

Heads up

The Court of Appeal's decision in Kocur v Angard Staffing Solutions Ltd & another provides helpful confirmation that an agency worker's right to be informed of relevant job vacancies at the hirer they are working for does not extend to a right to apply or be considered for the notified post.

What the Agency Workers Regulations say

This appeal focuses on Regulation 13 of the Agency Workers Regulations 2010 (the "Regulations"). This gives agency workers the right to be informed of any relevant vacant posts with the hirer to give them the same opportunity as the hirer's own workers to find permanent employment with the hirer. It is a "day one right", which means that agency workers are entitled to this as soon as they start a temporary assignment with the hirer.

Court of Appeal rejects expansive interpretation of the right to be informed of job vacancies

The Court of Appeal, agreeing with the Employment Appeal Tribunal's decision below, said that it was not a breach of the Regulations to deny agency workers the right to apply and be considered for internal vacancies. The Regulation 13 right is limited to being notified of the vacancies on the same basis as directly recruited employees and to be given the same level of information about the vacancies. This reflects a pragmatic compromise underpinning the Regulations between giving agency workers employment protection rights while ensuring that hirers retain flexibility when engaging agency labour.

The Court emphasised that a right to be notified is still a real, if modest, advantage in itself, as it puts agency workers in a better position than the general public by giving agency workers advanced knowledge of potential vacancies. This is so, even if the employer reserves some of those vacancies for directly engaged staff only.

Practical impact for employers

While cases in this area are often fact-specific, the Court of Appeal's decision provides a useful illustration of how the rights granted to agency workers under the Regulations operate in practice. It also emphasises the need for flexibility at the centre of the relationship between hirers and agency workers, which is welcome news for employment businesses and their end user clients.

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