Job Opening

Agency workers have the right to be provided with information relating to any vacancy within the organisation to which they are assigned. However, do they have the right to also be considered for that job on the same footing as a permanent employee? This was the issue that was considered in a recent case [1].

The background was that Mr Coles had worked for the Ministry of Defence (MoD) through an employment business. A big restructure had led to a number of their permanent employees being placed at risk of redundancy. These employees were to be given preference for any post that they applied for at their existing level. The post that Mr Coles had been filling was advertised internally and one of the employees at risk applied for it and was appointed. The employment business was informed that Mr Coles would no longer be needed. He claimed that this was a breach of Agency Workers Regulations [2] as preference had been given to a permanent employee over him as an agency worker.

His claim failed. The post had been advertised internally so he had just as much information about it as the MoD employee who had applied and been appointed. As far as the practice of giving the permanent employee preference it was held that there was nothing in the Agency Workers Regulations to prevent this. The legislation only provided the agency worker with a right to have access to information about vacancies and nothing more.

This decision confirms that the statutory protection afforded to temporary agency workers is not as far reaching as that provided to other types of atypical worker. Fixed term employees for example have a general right to no less favourable treatment. However, for those working through an employment business it was held that ‘the principle of equal treatment is confined to working time and pay’. Whilst the right to receive the information was described as valuable it does lead to the conclusion that the temp may have no real prospect of getting a job if the employer has in place a policy that provides that only existing employees will be appointed.

This post was edited by Chris Thompson. For more information, email blogs@gateleyplc.com.

[1] Coles v Ministry of Defence

[2] Agency Workers Regulations 2010 and Temporary Agency Worker Directive


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.