Dominik Kocur v Angard Staffing Solutions Limited

Regulation 13 of the Agency Workers Regulations 2010, construed in conformity with article 6(1) of the Temporary Agency Workers Directive, confers a right to be informed of relevant vacancies. It does not confer a right to apply for, or to be considered for, a vacancy from which agency workers are excluded. Equal treatment under article 5 concerns defined basic working and employment conditions, not the pre-contract recruitment process. The Directive establishes minimum harmonisation, so courts cannot add an unexpressed right through purposive interpretation. Hirers may reserve internal vacancies, including redeployment opportunities, for directly employed workers, provided agency workers receive the required information.

The appellant was supplied by Angard Staffing Solutions Limited to work for Royal Mail. Permanent vacancies were offered first to directly employed operational workers and a reserve class. Agency workers could apply when vacancies were advertised externally but were not eligible for the internal vacancies.

The Employment Tribunal held that Regulation 13 of the Agency Workers Regulations 2010 included an implicit right to apply for and be considered for relevant vacancies. The Employment Appeal Tribunal disagreed, holding that the provision required notification and equivalent information only. The appeal concerned whether article 6(1) of the Directive and Regulation 13 also required equal access to the application and selection process.

The appeal was dismissed unanimously. Lord Justice Green gave the leading judgment, with Lord Justice Singh and Lord Justice Bean agreeing.

1. Scope of the right. Article 6(1) of the Temporary Agency Workers Directive and Regulation 13 of the Agency Workers Regulations 2010 are, in their natural meaning, concerned with notification. They do not confer an implied right to apply for, or to be considered for, a notified vacancy. The right is nevertheless substantive: agency workers must receive the same level of information about relevant vacancies as comparable directly employed workers.
2. Purposive construction. The Directive balances employment security for temporary workers with employer flexibility, respect for labour-market diversity and collective agreements. It is a minimum-harmonisation measure under article 9. The omission of a right to apply or be considered was therefore not a gap for the court to fill. The court considered the recitals, substantive provisions, drafting technique and practical consequences of the proposed interpretation. A complex right with significant effects on employers and permanent workers would have required express statutory treatment.
3. Equal treatment. Article 5 applies only to basic working and employment conditions, as defined by article 3(1)(f), such as working time and pay. Those are terms of an existing employment relationship. They do not extend to the pre-contract process by which vacancies are offered or filled.
4. Redeployment and internal vacancies. Coles v Ministry of Defence [2016] ICR 55 was not distinguishable merely because it concerned redundancy. Article 6(1) is expressed in generic terms. The Directive and Regulation 13 therefore do not prevent a hirer from reserving internal vacancies or redeployment opportunities for directly employed workers. The fact that Regulation 13 is a day-one right reinforced the conclusion that no broader right was intended.

The Employment Appeal Tribunal had correctly construed Regulation 13, and its decision was upheld.

1. Court of Appeal (Civil Division) — dismissed the appeal on 17 February 2022.
2. Employment Appeal Tribunal — in UKEAT/0105/19/JOJ and UKEAT/0209/19/JOJ, rejected the Employment Tribunal’s broader construction and held that agency workers had a right to notification and equivalent vacancy information, but not to apply for or be considered for internal vacancies.
3. Employment Tribunal — held that the notification right included an implicit right to apply for and be considered for relevant vacancies.