Agency Workers Update

The law gives significant protection to agency workers (individuals supplied to a business by an employment agency, also known as “temps”):

  1. Protection from discrimination and from detrimental treatment due to health and safety complaints.
  2. From day one, the right to equal treatment (along with the company’s employees) in relation to car parking, childcare, canteen facilities.
  3. The same rights as employed staff in relation to pay, holidays, working hours, sick pay – but this only arises after working on the same assignment for 12 weeks.
  4. The right to be given information about permanent vacancies, in the same way as the information would be provided to the company’s employed staff.

In the case of Kocur v Angard Staffing Solutions Ltd the Court of Appeal considered that 4th point.   The Claimant argued that he had the right to apply and be considered for vacancies in the company which hired him. The company argued that while he had the right to be informed of permanent vacancies, he did not legally have a right to be allowed to apply for them (making the right to be informed rather pointless!).

The employment tribunal had agreed with the Claimant, then on appeal the Employment Appeal Tribunal sided with the company and decided that an agency worker has no right to be considered for vacancies in the organisation which hired him from the agency. 

The Court of Appeal then had to consider this point and carried out a very thorough analysis of the background to the European Temporary Agency Workers Directive, along with the rules of statutory interpretation.  The Court eventually concluded that if Parliament had intended that agency workers should have a right to apply for, and be considered for, permanent vacancies in the hirer’s organisation, it would have said so expressly.  Instead, the legislation only refers to a right to be informed of permanent vacancies, and that, therefore, was the extent of the right – the Claimant had no right to be considered for any vacancies.

This is an important case for any businesses who make use of agency workers, however, do remember that the rights enjoyed by such staff are extensive, and you need to be aware of them.  Claims can be brought at an employment tribunal in respect of any breach of the Regulations, and the tribunal can award compensation and make recommendations to the business as to how it should alter its practices.

This is a complex area and expert advice is available from our expert team of employment lawyers.

This update contains general information only and does not constitute legal or other professional advice.

Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012

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