CIPD: Temps only need equal access to the same vacancy information. It is a basic principle of the Agency Workers Regulations 2010 that temporary agency workers are entitled to equal treatment compared with permanent employees over their fundamental terms of employment, such as pay rates and working time.
The regulations implement the EU’s temporary agency worker directive 2008. Article 6 of the directive requires agency workers to be informed of any internal vacancies at their current place of work in order to give them the “same opportunity as other workers in that undertaking to find permanent employment”.
A recent Employment Appeal Tribunal case, Coles v Ministry of Defence, examined whether Article 6 is concerned only with the provision of information, or whether it gives temporary agency workers an additional right to apply for internal vacancies on an equal footing with permanent employees.
The MoD employed a mix of permanent employees and temporary agency workers at its organisation in Wales. Coles was an agency worker, with a temporary role as a technical liaison officer. When the MoD embarked on a substantial restructuring exercise, it placed 530 permanent employees into a redeployment pool. Any internal vacancies were advertised internally and all workers could see which vacancies were available, but permanent employees in the redeployment pool were given priority consideration for vacancies at their current level.
Coles argued that this prioritisation denied him the opportunity to apply for the position that he had temporarily held. He claimed that this was a breach of Article 6 of the directive, on the basis that he was not given the same opportunity to find permanent work as other workers in the organisation.
Tribunal and EAT
The employment tribunal disagreed with Coles and found against him. He appealed. The Employment Appeal Tribunal agreed with the tribunal and dismissed the appeal. It held that although temporary agency workers do have various rights relating to equal treatment with regard to, for example, working time and pay, Article 6 only refers to providing equal information about vacancies. The provision does not prevent permanent employees from being given preferential treatment when it comes to filling such vacancies.
Although the inclusion of the words the “same opportunity” in the directive may be slightly confusing because they could be interpreted broadly, the EAT was very clear that the purpose and meaning of Article 6 is simply that information relating to a vacancy must be provided to temporary agency workers, and any other types of worker, in an equally useful form and at an equally convenient time. The directive does not restrict the terms on which employment might be offered or prevent priority consideration being given to permanent employees over temporary agency workers.
This case is a useful clarification of the meaning and purpose of Article 6 of the temporary agency workers directive and of the limitations on the rights of agency workers. It will be a great relief to employers who will be encouraged by the finding that they will be well within their rights to give first refusal on any vacancies to existing permanent employees, provided they make information about internal vacancies readily available to workers of all types.