Ministry of Defence entitled to redeploy permanent employee in agency worker's role

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    Coles v Ministry of Defence ET/1603792/2013 (0 other reports)

Coles v Ministry of Defence ET/1603792/2013

recruitment | agency workers | information on vacancies

An employment tribunal has found that, while the Agency Workers Regulations 2010 (SI 2010/93) require employers to provide agency workers with information about relevant vacancies, they do not require equality of opportunity during the selection process with internal applicants who are permanent members of staff.

Practical tips

The requirement under the Agency Workers Regulations 2010 for employers to inform agency workers who are working for it about vacancies is not onerous. The requirement can be satisfied by placing the information somewhere that an agency worker can see it, typically on the employer's intranet or on a noticeboard in a communal staff area.

The Agency Workers Regulations 2010 do not set out what should happen during the recruitment selection process after the information on vacancies has been provided to the agency worker.

While employers should recruit the best person for the job, an employer would be quite entitled to favour a potentially redundant permanent employee with the required qualifications over an agency worker already working for the employer, even if that means the end of the agency worker's assignment.

From 2005, Mr Coles was an agency worker with the Ministry of Defence, covering a role temporarily while a restructuring exercise was carried out. He was made aware that his assignment could be terminated at any time. In 2008, he applied unsuccessfully for a permanent position, failing a management assessment test.

Mr Coles continued in his role until 2013, when a substantial restructuring exercise meant that over 500 permanent staff were put in a redeployment pool. Civil Service recruitment has four stages, with the first three stages giving priority to internal applicants and jobs being opened up to external applicants only under stage 4.

Jobs are advertised on the Civil Service Jobs website. Individuals who already work for the Ministry of Defence can sign up on the website to be informed of vacancies as long as they have an internal Ministry of Defence email address. Agency workers can register using their own Ministry of Defence email address, or their line manager's internal email address.

Mr Coles registered on the Civil Service Jobs website, with the Ministry of Defence's records showing that he was sent an automated email in March 2013 to activate his account. Mr Coles, who said that he had not received an activation email, did not activate his account.

In June 2013, Mr Coles was informed a few days before the closing date for applications that his position was being advertised on the Civil Service Jobs website. He could not find his position on the website and, on raising a query with HR, was told that he would not be able to apply for the job unless it was advertised externally under stage 4 of the Civil Service recruitment scheme.

The Ministry of Defence appointed an internal applicant who had been put in the redeployment pool and had applied under stage 1 of the scheme. Mr Coles' assignment was terminated in August 2013. He claimed that the Ministry of Defence had breached reg.13(1) of the Agency Workers Regulations 2010, which provides:

"An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer."

Regulation 13(1) implements art.6(1) of the Temporary Agency Work Directive (2008/104/EC), which states:

Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment. Such information may be provided by a general announcement in a suitable place in the undertaking for which, and under whose supervision, temporary agency workers are engaged.

The employment tribunal rejected Mr Coles' claim. It said that the Ministry of Defence gives agency workers access to the Civil Service Jobs website and, had Mr Coles activated his account, he would have received details of his post being advertised. Given the size of the Ministry of Defence, the Civil Service Jobs website is an appropriate way of informing staff of vacant posts. The Ministry of Defence's arrangements for informing agency workers of relevant vacant posts meet the requirements of reg.13(1) of the Agency Workers Regulations 2010.

The tribunal accepted that, although Mr Coles had been given information on the vacancy and was free to apply, the Civil Service recruitment scheme meant that his application would have been rejected on the basis that he was ineligible. The tribunal considered that neither domestic nor European legislation prevents an employer from giving priority when vacancies arise to permanent staff who are at risk of redundancy and/or have been placed in a redeployment pool during a restructure.

The employment tribunal declined the claimant's request to refer the matter to the European Court of Justice. The wording of the Temporary Agency Work Directive and its implementation in the Agency Workers Regulations 2010 raised little scope for doubt.

Case transcript of Coles v Ministry of Defence