Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The respondent is an employment agency and it provides agency workers to the Royal Mail. The issue arising in this case related to Regulation 13 of the Agency Workers Regulations 2010. This provides that an agency worker has during an assignment the right to be informed by the hirer (Royal Mail) of any relevant vacant posts. This is to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.
The respondent argued that the ET had failed to properly interpret the Regulation. They argued that the agency worker only needs to be informed of the vacancies rather than being given the opportunity to apply for them. The EAT allowed an appeal on this basis. They found that the right to be informed is not the same as being able to apply for the vacancies on the same terms as direct recruits. As a result, the appeal was successful. The claimants appealed this to the Court of Appeal.
The Court of Appeal examined the EU Temporary Agency Workers Directive which allowed for the implementation of the Agency Workers Regulations 2010. Article 6 of the EU Directive outlines the purpose of the right to be notified is to ensure that they are given the same opportunity to find permanent employment. As a result, the Court of Appeal stated that a literal reading meant it was only a duty to be notified rather than any more wide-ranging duty. The Court of Appeal rejected the point made by the agency workers that the directive was designed to give a degree of primacy to temporary employees to get them into permanent employment. The Court stated that there was no hierarchy created but it was merely about ensuring that there was a right to be notified of the vacancies. The Court, examining this from a practical perspective, stated that it would be odd if agency workers were given preferential treatment to permanent candidates. It would also have an adverse effect on giving preferential status to those who are on redeployment registers. As a result, the appeal was dismissed.
Practical Lessons
It may seem on the face of it that having the mere right to be notified of a vacancy but having no other preferential treatment vis-à-vis that vacancy may be pointless. The Court of Appeal stated that being notified is a real advantage to agency employees but that there had to be a balance between various competing interests. This would include the position of the permanent employees who the hirer may want to prefer as well as those on redeployment register. As a result, it is clear that there are quite severe limitations to the rights that agency workers have under Regulation 13 but such a position is required for practical reasons and ensuring a proper balance between the relevant individuals.
https://www.judiciary.uk/wp-content/uploads/2022/02/Kocur-v-Angard-Staffing-Solutions-Ltd-and-Anr-judgment.pdf
For more background on ths case, see Jasons previous case reviews:
https://www.legal-island.com/articles/uk/case-law/2018/march/kocur-v-royal-mail-group-2018/
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