In Coles v Ministry of Defence, the judgment of which has just been handed down, the Employment Appeal Tribunal for the first time has considered significant questions of interpretation of the Agency Worker Regulations 2010.
Mr Coles argued that the Respondent was in breach of its obligations under Regulation 13 of the Agency Workers Regulations 2010 (“the Regulations”), and Articles 5 and 6 of the Temporary Agency Worker Directive (2008/14/EC) (“the Directive”) by denying him the opportunity to apply for the position he had temporarily been occupying, as an agency worker.
Mr Coles argued that Regulation 13(1) conferred not simply a right to be provided with information about relevant vacancies in an undertaking but that it encompassed a right to apply for such vacancies and to have that application considered on its merits. He claimed that important points of interpretation of the Regulations and Directive arose such that it was necessary to refer the case to the European Court of Justice.
The MOD, who had instructed Joanne Williams, argued that the right was clearly limited to information; that Mr Coles had been provided with such information and that it was not therefore in breach of the same.
Mr Justice Langstaff held that Regulation 13(1) provided a right to be informed of vacant posts in the permanent workforce of an end-user undertaking, but not any further right to have preference over existing direct employees of the end-user, nor to have a guaranteed interview, and that to give preference to those in a redeployment pool which did not include the Claimant in these circumstances could not be said to be in breach of the Claimant’s rights. Furthermore, the EAT declined to make a reference.
The transcript of the judgment is here.
Coles v Ministry of Defence (2015) EKEAT/0403/14/RN
7 August 2015