Introduction

The case of Kocur v Angard Staffing Solutions Ltd & Anor ([2022] WLR(D) 88) addresses significant questions regarding the scope of rights conferred to agency workers under the Agency Workers Regulations 2010 (AWR), SI 2010/93. Specifically, the dispute centers on whether Regulation 13(1) AWR, which grants agency workers the right to be informed of relevant vacant posts with the hirer, extends to an implicit right to apply for and be considered for these vacancies on par with directly employed permanent workers.

The appellant, Mr. Kocur, an agency worker supplied by Angard Staffing Solutions to Royal Mail, contested the Employment Tribunal's (ET) interpretation that the right to be informed does not encompass the right to apply or be considered for vacancies. The Employment Appeal Tribunal (EAT) upheld this narrow interpretation, aligning with precedent set in Coles v Ministry of Defence [2016] ICR 55. Mr. Kocur subsequently appealed the decision to the England and Wales Court of Appeal (Civil Division).

Summary of the Judgment

The England and Wales Court of Appeal upheld the EAT's interpretation, reaffirming that Regulation 13(1) AWR confers solely the right to be informed of vacant positions to agency workers, without extending to the right to apply for or be considered for these positions. Consequently, the appellant's claim that the regulation should encompass a broader set of rights, including application and consideration, was dismissed. The court emphasized the importance of adhering to the legislative intent and the established balance between enhancing agency workers' rights and preserving employer flexibility.

Analysis

Precedents Cited

The judgment extensively references Coles v Ministry of Defence [2016] ICR 55, where Langstaff J held that the Directive and, by extension, the AWR, provide a right to information rather than a right to apply for vacancies. In Coles, agency workers were informed about vacancies but were not eligible to apply, and the court found this consistent with the Directive's provisions. The Court of Appeal in Kocur followed this precedent, emphasizing that the Directive's language limits the right to notification without an inherent right to application or consideration.

Additionally, the Court referred to Kocur v Angard Solutions Ltd [2019] EWCA Civ 1185, where similar interpretative principles were applied concerning the definition and application of "basic working conditions." These cases collectively underscore a jurisprudential trend towards interpreting the AWR narrowly to balance agency workers' rights with employers' operational flexibility.

Legal Reasoning

The Court employed a purposive interpretation approach, analyzing the Directive's recitals, legislative history, and the Directive's substantive provisions. It determined that Regulation 13(1) AWR and Article 6 of the Directive were explicitly concerned with the right to be informed about vacancies, not with granting agency workers the right to apply or be considered for these positions.

The Court emphasized that the Directive aims to strike a balance between improving job security for temporary workers and maintaining flexibility for employers. Extending the right beyond notification could disrupt this balance, potentially diminishing employers' ability to manage workforce fluctuations effectively.

The Court also considered legislative drafting techniques, noting that if the legislature had intended to provide broader rights, such as the right to apply, it would have done so explicitly within the Directive's provisions rather than leaving it implicit.

Impact

This judgment affirms the narrow interpretation of agency workers' rights under the AWR 2010, limiting them to notification without entitling them to apply or be considered for vacant positions. The decision reinforces the established legal framework, ensuring that agency workers receive essential information while preserving employers' ability to prioritize permanent staff based on established criteria like seniority and retention policies.

Future cases involving agency workers will likely continue to reference this judgment, especially when delineating the boundaries of agency workers' rights. Employers can remain assured that they are not legally obligated to extend application and consideration rights to agency workers beyond the scope of notification, provided they comply with the information-sharing requirements stipulated in Regulation 13(1) AWR.

Complex Concepts Simplified

Agency Workers Regulations 2010 (AWR)

The AWR 2010 implement the EU Temporary Agency Workers Directive 2008/104/EC into UK law. They aim to provide temporary agency workers with certain rights comparable to those of permanent employees, particularly regarding pay and working conditions after a qualifying period of 12 weeks.

Regulation 13(1) AWR

This regulation grants agency workers the right to be informed about any relevant vacant positions within the hirer's organization during their assignment. The purpose is to provide agency workers with the same chance as permanent staff to secure permanent employment.

Qualifying Period

A qualifying period under AWR refers to the required minimum duration (typically 12 continuous weeks) that an agency worker must spend on assignments with the same hirer to access certain minimum rights, including protections under Regulation 5 and Regulation 13.

Comparable Worker

A comparable worker is defined as an employee or worker performing the same or broadly similar work under the same conditions within the organization. This term is crucial in determining the scope of equal treatment provisions under AWR.

Conclusion

The Court of Appeal's decision in Kocur v Angard Staffing Solutions Ltd & Anor reinforces the interpretation that the rights of agency workers under the AWR 2010, specifically Regulation 13(1), are confined to the provision of information regarding vacancies without extending to the right to apply for or be considered for these positions. This judgment upholds the statutory framework's balance between safeguarding agency workers' access to employment opportunities and maintaining employers' flexibility in workforce management.

By dismissing the appellant's broader interpretation, the court emphasizes the importance of adhering to legislative intent and the precise language of the regulations. The decision clarifies that while agency workers are afforded important informational rights, these do not translate into expanded employment rights beyond the notified vacancy information. This clarity benefits both agency workers and employers by delineating clear boundaries within the existing legal framework.