The facts

The Agency Workers Regulations 2010, which implement into UK law the European Temporary Agency Workers Directive, provide that, during an assignment, an agency worker has the right to be informed by the hirer of any relevant vacant posts with the hirer. This case is about whether this right should extend to a right to apply for and be considered for vacancies on the same terms as directly recruited employees.

Angard Staffing Solutions Ltd is an employment agency which provides agency workers to Royal Mail. Mr Kocur was an agency worker employed by Angard and supplied to Royal Mail to work in the Leeds Mail Centre in an operational post grade. Royal Mail operates a strict rule that the opportunity to apply for vacancies for certain roles will first be given to permanent employees. Agency workers do not initially have the right to apply, but if the vacancies are not filled by these categories of Royal Mail employees, the opportunity will be opened up to agency workers and external candidates. Under this rule, Mr Kocur was not initially eligible to apply for a vacant role. He was given the same information about the vacancies as permanent Royal Mail employees.

Mr Kocur successfully argued in the employment tribunal that the legislation should be construed as giving him a right to apply for and be considered for a vacancy. Angard and Royal Mail successfully appealed to the EAT, and Mr Kocur appealed to the Court of Appeal. The Court of Appeal dismissed his appeal, agreeing with the EAT that the legislation does not give agency workers the right to apply for and be considered for vacancies on the same terms as the hirer’s directly recruited employees.

Key points in the Court of Appeal’s judgment include:

• On a literal reading of the UK and European legislation, the only obligation imposed on employers is the obligation to notify the agency worker about any vacancies.
• The purpose of the European directive is not to equate notification with a right to apply and to be considered for a vacancy.
• A right to be notified of vacancies, even without an equal right to apply and be considered, does give agency workers an advantage, so the right to be notified is a meaningful one contrary to Mr Kocur’s argument to the contrary.
• Limiting the right to a right to be provided with information was a deliberate and valid policy choice made by the legislature.
• If the right were widened to include a right to apply for vacancies, there would be negative consequences – in particular, this would inhibit employers’ ability to given preferential treatment to any employees who had been selected for redundancy.

What does this mean for employers?

The law is clear, so long as the same vacancy information is provided to agency workers as it is to the hirer’s employees there is no breach of this right. It’s not yet known whether Mr Kocur will be granted permission to appeal to the Supreme Court.