Coles v Ministry of Defence

Agency workers have a right to be informed of relevant vacancies in the end-user’s permanent workforce. That right gives them the same opportunity as other workers to learn of and consider permanent employment. It does not confer a right to apply on equal terms, a guaranteed interview, preferential treatment, or selection for the post.

An employer may give priority to permanent employees placed in a redeployment pool during restructuring. The Regulations and Directive do not establish general parity between agency workers and direct employees. Equal treatment under the Directive is confined to basic working and employment conditions, principally pay and working time, together with the separate right to vacancy information.

The claimant was supplied as a temporary agency worker to the Ministry of Defence and worked in a post that became subject to restructuring. The Ministry placed permanent employees at risk of redundancy in a redeployment pool and gave them priority for vacancies. A permanent employee was appointed to the post the claimant had been performing, and his assignment ended.

The Employment Tribunal rejected his claim under regulation 13 of the Agency Workers Regulations 2010 and Articles 5 and 6 of the Temporary Agency Worker Directive. It held that he had been informed of the vacancy and that priority for redeployed permanent employees was permitted. The central issues were whether the provisions required more than information, whether the claimant had to be treated as a comparator, and whether a reference to the European Court was necessary.

1. Appeal dismissed. The Directive and regulation 13 of the Agency Workers Regulations 2010 confer a right to information about relevant vacant posts. The right is valuable in itself and is intended to give an agency worker the same opportunity to learn of and consider permanent employment as other workers in the undertaking.
2. The right does not confer a further right to apply on equal terms, to be considered for interview, to receive a guaranteed interview, or to obtain preferential treatment over permanent employees. The wording and structure of Article 6 support that conclusion. The provision regulates equal access to information, including through a general announcement, rather than the terms of recruitment.
3. The principle of equal treatment in Article 5 is limited to basic working and employment conditions. In context, those conditions concern working time and pay. The Directive does not create a general right for agency workers to be treated no less favourably than direct employees.
4. An employer may give priority to permanent employees placed in a redeployment pool during restructuring. Protecting permanent employees threatened with redundancy is consistent with the Directive’s recognition of industrial relations and flexible agency work. The fact that the vacancy was the post occupied by the claimant did not require his inclusion in the redeployment pool.
5. The Employment Tribunal erred in focusing on the claimant’s comparator by reference to qualifications. Under regulation 13(2)(a)(ii), the relevant question is whether the workers are engaged in the same or broadly similar work. Qualifications and skills matter only insofar as they bear on that comparison. The error was immaterial because the claimant’s substantive claim failed on the scope of the right.
6. The post was capable of being a relevant vacant post in its ordinary and natural meaning. The Regulations and Directive did not, however, restrict the employer’s criteria for deciding who should fill it. No reference to the European Court was required because the interpretation of Article 6 was sufficiently clear and the comparator issue could not determine the appeal.

• Employment Tribunal: rejected the claimant’s complaint under regulation 13 of the Agency Workers Regulations 2010 and Articles 5 and 6 of the Temporary Agency Worker Directive. It held that the claimant had been informed of the vacancy and that priority for permanent employees in a redeployment pool was lawful.
• Employment Appeal Tribunal: dismissed the appeal and declined to make a reference to the European Court. It held that the right was one of information and that the comparator error did not affect the result.