In Coles v Ministry of Defence, the EAT has held that Reg 13 of the Agency Workers Regulations 2010, which gives agency workers the right to be informed of vacancies in the end-user company for which they work, does not prevent that company giving preference for vacant posts to permanent employees in need of redeployment. The Reg 13 right is simply a right to information – it does not grant the agency worker any preferential position in relation to opportunities for permanent employment.
BRC Ltd supplied estates management personnel, including C, to an MoD organisation in Wales. In 2013 the MoD decided on a substantial restructuring, as a result of which 530 permanent employees were placed into a redeployment pool. They were to be given priority consideration for vacancies at their existing grade. In May, a post at the site where C was working became available. It was advertised internally and C would have been able to see the advertisement, had he looked for it, but he did not apply for it. An employee in the prioritised redeployment pool, G, did apply and was appointed. In consequence, the MoD had no further need for C’s services and so gave notice that his assignment would terminate in August. C complained to a tribunal under Reg 13 that the MoD had failed to allow him access to details of the vacancy and had denied him the opportunity of applying for it.
A tribunal rejected the claim. It did not accept C’s central argument that he was entitled not only to information as to vacancies but also to the right to be considered for such vacancies on an equal footing with permanent employees. In so ruling, the tribunal declined to make a reference to the European Court of Justice on the meaning of Article 6 of the EU Temporary Agency Worker Directive (No.2008/14), which Reg 13 implements. C appealed to the EAT.
Mr Justice Langstaff, sitting alone in the EAT, dismissed the appeal, holding that Article 6 of the Directive is clearly restricted to a right to information. Although Article 6 states that agency workers must be informed of vacancies so that they have ‘the same opportunity as other workers in that undertaking to find permanent employment’, this does not mean that they must be able to apply for the vacancies on an equal footing. ‘Same opportunity’ means simply that the information must be provided in just as useful a form, and at just as convenient a time, to the agency worker as it is to other workers. The information is provided not to secure further employment but to help towards finding it – the Article says nothing about the terms on which the employment might be offered.
Langstaff P pointed out that the guidance issued by the Department for Business, Innovation and Skills appears to be inaccurate on this point. It suggests that the right to be told of a vacancy would not apply in the context of a genuine ‘headcount freeze’ but Langstaff P could see no reason why this should be so. Langstaff P also refused to make a reference to the ECJ on the proper meaning of Article 6. In his view, there was no reason to think that Article 6 was intended to provide anything more than a straightforward reading of its terms would suggest.
Thomson Reuters (c)