Agency Worker Regulations – Clarification on scope of “Day 1 Rights”

A recent case has confirmed that the Agency Worker Regulations 2010 (AWR) do not entitle agency workers to equal treatment in being considered for directly employed vacancies. The end user is also only obliged to inform agency workers of such vacancies.

Under AWR Regulation 13 “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 the case of Coles v Ministry of Defence, Mr Coles was an agency worker supplied by an agency to the MOD (end user). The MOD undertook a restructure and as a result 530 of their employees were placed into a redeployment pool and given priority status for vacancies at their existing grade.

The work Mr Coles performed was advertised internally as a vacant post and was visible to all internal staff including agency workers. Mr Coles did not look at the advertisement and did not apply for the vacancy. An internal applicant with priority status applied for the position and was successful.  As a result Mr Coles’ assignment was terminated.

Mr Coles brought claims for breach of AWR alleging the MOD had failed to allow him access to the details of the vacancy and had denied him the opportunity to apply for the role. The Employment Tribunal (ET) and the Employment Appeals Tribunal (EAT) both decided that regulation 13 only related to providing information on vacancies and did not require an end user to consider agency workers on an equal footing with existing employees.  Mr Coles’ right to equal treatment in basic working and employment conditions had not been breached and the MOD was entitled to give priority to employees who were at risk of redundancy over agency workers.

The outcome appears to be a common sense interpretation of AWR regulation 13 and will be welcomed by end user clients and employment businesses.

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