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  • David Sharp
  • 18 August 2015
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‘Surprise’ ruling in agency worker case

An agency worker has lost an Employment Appeal Tribunal (EAT) claim against his former employer in a case that will be of interest to any employer undertaking a programme of restructuring where both agency and permanent staff roles are affected.

In Coles v. Ministry of Defence, Mr Coles was a temporary agency worker for the Defence Housing Executive (DHE). DHE commenced a restructuring programme encompassing 530 permanent roles, eventually redeploying one of its permanent staff to take on Mr Coles’ post, resulting in his agency contract being brought to an end.

Mr Coles argued the DHE was in breach of its obligations under Regulation 13 of the Agency Workers Regulations 2010 (AWR), and Articles 5 and 6 of the Temporary Agency Worker Directive (2008/14/EC), by denying him the opportunity to apply for the position he had been occupying as an agency worker, in giving preference to the existing permanent workers it was looking to redeploy elsewhere in the organisation.

Mr Coles’ claim that he was unfairly treated under the AWR and European law was dismissed at the EAT, which recognised that – while the law gave him a right to be informed of vacant posts in the permanent workforce of his employer – it did not give him the right to have preference over existing direct employees of the employer, or to have a guaranteed interview for the post.

Regulation 13 of AWR states that: “An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.”

In this case, the original Employment Tribunal (ET) had noted that Mr Coles’ role had indeed been advertised and “would have been visible [to him] had he chosen to look for it”.

But the EAT did not consider that the right for an agency worker to be informed about a vacancy extended to a right to be considered for that vacancy, stating:

“Equal provision of information is what is stressed, rather than equality in the job application process… The information is provided not to secure further employment, but is designed towards helping to find it.”