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The limits of equal treatment for agency workers

Posted on 24 September 2015

The limits of equal treatment for agency workers

The Employment Appeal Tribunal (EAT) has recently considered the limits of an agency worker's rights to equal treatment in the case of Coles v Ministry of Defence. The case serves as a reminder that while the Agency Workers Regulations 2010 (AWR) provide agency workers with equivalent rights to comparable employees as regards working hours and pay after 12 weeks, and provide certain 'day one' rights such as the right to be informed of vacancies at the end-user, the principle of equal treatment should not be construed as giving equal status to agency workers and permanent employees in other respects. In this case, it was confirmed that agency workers cannot expect to be treated in the same way as permanent employees in the event of redundancies at the end-user client.

Mr Coles was an agency worker supplied by a recruitment business, Building Recruitment Company Limited, to an end-user client, a division of the Ministry of Defence (MoD). The MoD undertook a restructure and 530 employees were put at risk of redundancy. The employees were placed into a redeployment pool and were allocated "stage 1" status, which gave them priority for redeployment into any vacancies at their grade.

As part of the redeployment attempts, Mr Coles' role was then advertised internally as a vacancy for a permanent position. Mr Coles did not see the advert, nor did he apply for the role. However, the post was visible and available to all internal candidates, including Mr Coles.  An internal applicant, with stage 1 status, applied for and was successful in obtaining the position. As Mr Coles' services were no longer required, his assignment was terminated.

Mr Coles appealed a decision of the Employment Tribunal, submitting (among other things) that the MoD had breached the AWR by prioritising internal candidates at risk of redundancy over agency workers who were at risk of losing their assignment. Mr Coles also claimed the MoD had breached his rights to equal treatment in basic working and employment conditions because had been denied access to details of the vacancy and had not been given the opportunity to apply for the role.

The EAT rejected his appeal, concluding that Mr Coles did have access to details of the vacancy that was advertised. However, his rights under the AWR were limited to this provision of information. Mr Coles did not have the right to be considered for the vacancy on an equal footing with employees. The EAT held that the wording used in Regulation 13 of the AWR, which refers to "the same opportunity as comparable workers" is there to ensure that the agency worker's right to information is not undermined by, for example, the provision of information at a later date or time. There is nothing in the AWR to prevent an employer giving priority to employees whose roles were at risk of redundancy over incumbent agency workers. Mr Coles had a right to information, however he did not enjoy any rights in respect of recruitment or retention.

This case should reassure recruitment businesses and their clients that agency workers still afford the flexibility that clients expect and rely on. In the written judgement, Mr Justice Langstaff emphasised this explicitly, holding that the engagement of temporary agency workers "provides employers with a flexible response to the needs of their business. Their position is not to be equated with permanent employees".

Please contact Jennifer MillinsLegal Director in Employment, to find out more.

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