The Agency Workers Lawsuit: Kocur v Angard

Andrew Boast
09/04/2022
8
4 min read
Kocur v Angard: The Royal Mail Lawsuit Over Agency Workers explained by Employment Law Friend

Agency workers do not have the right to apply for a position with the hirer


In Kocur v Angard Staffing Solution Ltd the Court of Appeal held that the Agency Workers Regulations 2010, which provide agency workers with the right to be treated the same as direct employees after 12 weeks in almost all areas, does not extend to provide them with the right to apply for a position with the hirer.

In this case Mr Kocur was employed by Angard, which is a wholly owned subsidiary of Royal Mail Group Ltd, and which only supplies its workers to Royal Mail. Royal Mail had a policy of allowing “operational post grade” vacancies (basically posties) to open for applications first from those directly employed by Royal Mail, before considering agency workers.

This was the case whether those workers were directly employed on permanent or temporary contracts. Agency workers were only allowed to apply later – potentially when all vacancies had been filled - and were considered alongside external candidates.

Regulation 13 of the Agency Workers Regulations 2010 provides agency workers with the right to be notified of any jobs available with the hirer, and this applies from the first day of work (unlike most rights under the Regulations which apply after 12 weeks of continuous work).

The Claimant sought to argue that this should not be given a narrow and literal interpretation, and should be extended to include having the right to apply for any such jobs, but this was rejected by the Court.

Their reasoning was in part based on the fact that the Agency Workers Regulations were based on the EU Temporary Agency Workers Directive, and this only provides for the limited right of information to be provided.

The Court of Appeal also rejected the argument that interpreting the right in a narrow way rendered it of no importance, holding there was a real value to the right for agency staff to be informed of any positions available, and this interpretation did not render the clause redundant.

A major problem many agency workers will have in this situation is the fact that for them to become employed by the hirer directly, the hirer/end user will typically have to “buy” them from the agency, which will generally run into thousands of pounds. This can mean that agency staff find it difficult to be taken on permanently by the hirer they are working for, even when both sides would like this.

It is important to stress than an employer can treat agency workers alongside direct employees for vacancies if they wish to, or alternatively they can prioritise direct hires, but then consider agency workers before external candidates.

This ruling simply enables the hirer to prioritise their own employees if they so wish, providing agency workers are given the same opportunities to be made aware about any vacancies.

It follows from this than an employer can prioritise existing employees, and can also prioritise “types” of employees, typically those facing redundancy or who are unable to carry out their previous role due to a health problem or disability. In both cases, this would be aimed at preventing a direct hire from losing their employment.

On the facts of this case, the ruling seems harsh, because the agency in question, Angard, was owned by Royal Mail and only provided workers to them, and so was far removed from a typical agency situation.

There was also no suggestion that the positions available were ring fenced for those at risk of redundancy or otherwise in danger of losing their employment. Unfortunately, agency staff can continue to be excluded in this way, and there is nothing that they can do.

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