The Court of Appeal has held in Kocur v Angard Staffing Solutions Ltd and Royal Mail Group Ltd that although agency workers are entitled to be informed about vacancies during an assignment under the Agency Workers Regulations 2010, that does not mean they have a right to apply for and be considered for the jobs. Royal Mail was therefore entitled to restrict certain jobs that were advertised internally to permanent staff only.
Basic facts
Mr Kocur was employed by Angard, an employment agency wholly owned by Royal Mail, which provided agency workers to work exclusively for Royal Mail. Mr Kocur was hired by Angard to work in the company’s Leeds Mail Centre in an operational post grade (OPG).
When vacancies for permanent positions became available, they were advertised on the notice board and offered first to permanent and reserve class OPG operatives; not agency workers. Instead they could only apply for vacancies that were advertised externally.
Mr Kocur brought a number of claims, including an allegation that both Angard (his employer) and Royal Mail (the hirer) were in breach of regulation 13 of the Agency Workers Regulations 2010 (AWR).
Relevant law
Regulation 13 states that during an assignment agency workers have the right to be informed of any relevant vacant posts with the hirer in order to give them “the same opportunity as a comparable worker to find permanent employment with the hirer”.
Tribunal and EAT decisions
The tribunal agreed with Mr Kocur that the right to be informed about the vacancy extended to a right to apply for relevant vacant posts in the same way as permanent staff when working for Royal Mail.
The EAT (weekly LELR 707) disagreed, however, holding that the right to be notified of any relevant vacant posts and the right to the same level of information for agency workers did not mean that they were entitled to apply for and be considered for internal vacancies on the same terms as directly recruited employees.
It held that the right to be informed was a valuable right in itself, particularly as it meant that agency workers had as much information as they would have done if they had been direct recruits. Furthermore, it considered that agency workers who were told that they were ineligible to apply were in no worse a position than directly recruited employees who were unsuitable for a position. Finally, even though the same provision in Article 6 of the Temporary Workers Directive was headed “Access to employment” it was silent as to the extent of that access. Taking all this into account, the EAT held that it was not possible to interpret regulation 13 as a requirement that an individual who is notified of a vacancy must also be eligible to apply for it.
Mr Kocur appealed on the basis that Regulation 13 had to be interpreted in a way that was broadly consistent with the directive which entitled temporary agency workers to non-discriminatory parity treatment in the workplace.
Decision of Court of Appeal
Noting that the directive did not make temporary and permanent workers comparable “in all respects”, the Court of Appeal emphasised that the directive was a compromise “balancing employee rights against the needs of employers for flexibility”. The question for the court, therefore, was to “identify where the legislature had struck the balance”.
In terms of the actual wording of the regulation and the directive, the court pointed out that, when read literally, both referred only to a right of notification. Although Mr Kocur argued that the directive should be given a broad interpretation, the court concluded that “when read as a whole” the directive did not support that approach. Nor was there any hint of such an approach having crossed the minds of the European Commission, the Council or the Parliament. The fact that the regulation and directive did not expressly provide for the right to apply for a vacancy was not a gap in the law that could be resolved by taking a purposive approach.
Apart from anything else, the Court of Appeal was concerned that the “practical consequences” of Mr Kocur’s interpretation would mean that an agency worker who might only have worked for an employer for a day or two would have the same rights as a permanent employee to be considered for a vacancy. Another consequence would be that employers could no longer “address peaks and troughs in their demand for labour by offering variable hours of work for agency workers and that flexibility would thereby be substantially reduced”. This consequence was not consistent with the purpose of the directive.