In the case of Coles v Ministry of Defence, the Employment Appeal Tribunal (‘EAT’) had to consider whether the right under R.13 of the Agency Worker Regulations 2010 (‘AWR’) for agency workers to be informed of any relevant vacant post with the hirer extends to a requirement to offer the agency worker more favourable treatment during the recruitment process.
Mr Coles (‘the Claimant’) was supplied via an employment business to work for the Ministry of Defence (‘MOD’).
In 2013, the MOD placed a number of its permanent employees who were at risk of redundancy in a ‘redeployment pool’. These employees were given priority in search for alternative employment in the MOD.
Later that year, the Claimant’s position was advertised internally at the MOD. The advert was visible to any internal candidates who wished to be considered for this vacancy, including the Claimant. The MOD filled the Claimant’s role without offering him an interview for ‘his’ job and/or preference ahead of permanent employees. The Claimant argued that this was in breach of his right to equal treatment under R.13 AWR and the Temporary Agency Worker Directive.
The EAT disagreed with the Claimant and held that whilst the hirer is obliged to inform agency workers of any relevant posts, this obligation does not extend to requiring the hirer to give agency workers preference over its existing permanent employees or to guarantee that an agency worker will be interviewed. The hirer will not be in breach of the AWR if it gives preference to its existing direct employees over agency workers, as long as it has informed the agency workers of any relevant vacancies, which is a valuable right in itself.