I have just been made aware of an interesting first tier tribunal decision that is becoming more and more of an issue for union members who are agency workers on long term contracts.
Paragraph 13 of the Agency Worker Regulations 2010 states that
13.—(1) 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 (Coles v MoD) the claimant had been an agency worker under contract to the Ministry of Defence since 2005 until 2013, when his contract was terminated. In early 2013 MoD conducted a redundancy exercise that resulted in 500 staff being redundant. Presumably as part of a redundancy avoidance exercise the MoD advertised the claimants role under stage 1 of the civil service recruitment process (which limits applicants to those at risk of redundancy). The claimant was not informed about this advertisement until a few days before the closing date and to access information the claimant needed to register on the Civil Service recruitment website – it does not look as though the claimant did so. He was however also advised that he was unable to apply for the role, and would be only able to do so at the point that it was advertised to external applicants (namely, stage 4).
In the event the post was given to an applicant who was a permanent employee of MoD and was at risk of redundancy and, as a result, the claimant’s contract was terminated in August 2013.
The claimant made two claims to the Employment Tribunal (both with reference to section 13 of the AWR 2010):
- The Respondent had failed to advertise all available absences to the claimant; and
- In refusing the claimant permission to apply the Respondent the Respondent did not give the “agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.”
The ET found in favour of the Respondent on both points, and on the basis of what I have seen I think it do so correctly. Information on the advertisements was readily open to the claimant. On the second point the tribunal considered that the legislation does not prevents an employer from giving priority when vacancies arise to permanent staff who are at risk of redundancy and/or have been placed in a redeployment pool during a restructure.
It seems to be the decision was the right one. However, whilst the judgement, rightfully, allows preferential treatment to be given to workers at risk of redundancy what of those not at risk? Unfortunately, the ET looks as though it failed to address this issue which, to me, seems to be the most appropriate “comparable worker”. Is a civil service employer entitled to refuse the opportunity to agency workers to apply for posts at stage three of the civil service recruitment process (as they have been doing with some regularity)? That issue remains unclear but, given the decision is in Coles is apparently under appeal to the EAT, this is something which will hopefully be clearer soon.
That of course does not change the fact that there is clearly an issue of injustice here – after over 7 years doing the same job it is clear that the claimant should never have been in such a precarious employment situation in the first place. Although not as precarious as the scourge of zero hour contracts this is an area employment legislation needs to address by exploring a statutory right for agency workers to have a right to be converted to permanent employees after a period of time where the recruitment is clearly not ‘exceptional’ or ‘temporary’.
Case ref: Coles v Ministry of Defence  ET/1603792/2013