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Equal treatment of agency workers

Coles v Ministry of Defence

Agency workers have certain rights to equality of treatment at work. One of these is the right to be told about vacant positions that become available in the organisation they are working in. It is to give those temporary workers the same opportunity as direct workers to find permanent employment.

The question is how much security does this actually give agency workers? Where directly employed employees face possible redundancy, is it acceptable for an employer to give those members of staff priority when appointing people to roles that agency workers have been filling? Yes, according to a recent case.

The Ministry of Defence (MoD) had gone through a big restructure, with 530 direct employees having been placed in a redeployment pool. The job that Mr Coles was doing, as an agency worker, was advertised to staff. Priority was to be given to internal candidates in the redeployment pool, which excluded Mr Coles. He did not apply for ‘his’ role, and a permanent employee was appointed.

Mr Coles argued that there had been a breach of the Agency Workers Regulations because he had been denied the opportunity of applying for the position he had temporarily been occupying.

The Employment Appeal Tribunal (EAT) held that there was no breach. Agency workers like Mr Coles have the right to be told about vacant posts, but that is as far as it goes. They do not have the right to preferential treatment over existing permanent staff. The MoD had not breached Mr Coles’ rights by giving preference to those of its employees that were in a redeployment pool.