Dominik Kocur v Angard Staffing Solutions Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Green,Lord Justice Singh,Lord Justice Bean |
| Judgment Date | 17 February 2022 |
| Neutral Citation | [2022] EWCA Civ 189 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-00473 (previously A2/2021/0413) |
[2022] EWCA Civ 189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE CAVANAGH AND MR P M HUNTER
UKEAT/0105/19/JOJ & UKEAT/0209/19/JOJ
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lord Justice Singh
and
Lord Justice Green
Case No: CA-2021-00473 (previously A2/2021/0413)
Nathaniel Caiden (instructed by Bindmans LLP) for the Appellant
David Reade QC & Grahame Anderson (instructed by DAC Beachcroft LLP) for the 1st & 2nd Respondent
Hearing date: Thursday 20th January 2022
Approved Judgment
A. The issue
This appeal is concerned with the scope of the rights conferred on agency workers by the Agency Workers Regulations 2010, SI 2010/93 (“ the AWR”). This implemented the Temporary Agency Workers Directive, 2008/104/EC of 19 th November 2008 (“ the Directive”) into domestic law. Regulation 13(1) AWR provides that an agency worker has, during an assignment, the right to be informed by the hirer of any relevant vacant posts with the hirer. This is stated to be “ to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.”
The ET held that this express right to receive information extended to an implicit right to apply for relevant vacant posts. The EAT disagreed. It held that, properly construed in the light of the Directive, the right was only to be notified of the vacancies on the same basis as directly recruited employees coupled to a right to be given the same level of information about the vacancies as the directly-recruited employees. However, there was no right to apply, and be considered for, internal vacancies on the same terms as directly employed employees. The obligation was therefore satisfied if temporary agency workers were informed of the relevant vacancies, even if they were not given the opportunity to apply for them.
In coming to this conclusion, the EAT followed and approved of a judgment of Langstaff J in Coles v Ministry of Defence [2016] ICR 55 (“ Coles”). There the Ministry of Defence placed a number of direct employees, who were at risk of redundancy, in a redeployment pool. They were then accorded priority consideration for vacancies. The claimant was an agency worker fulfilling a temporary position. His post was advertised as a permanent job on the Civil Service website which he had access to. He was not however eligible to apply for the position which was subsequently offered to a permanent employee from the redeployment pool. The EAT rejected an argument that the Directive required the Ministry to offer temporary agency workers the right to compete with employees from the redeployment pool for the post. At paragraph [51] Langstaff J held:
“51. In summary, it is clear that the Directive provides a right to information. The right is a valuable right in itself. The purpose of the Directive is to give temporary agency workers the same chance as other workers in the undertaking of the end user to find permanent employment with that end user. It has nothing to say about the terms upon which there should be recruitment for any post. If an employer wishes to give preference to those being redeployed, perhaps to satisfy his obligations to them as his permanent employees, he is entitled to do so, and will not in doing so break any duty imposed by the Regulations or the Directive.”
The submission of the appellant in this appeal is that Regulation 13 AWR, to be consistent with the Directive, must be construed as conferring upon an agency worker: (i) a right to be notified of vacancies; (ii) a right to apply for a vacancy; and (iii), a right to be considered for a vacancy. The appellant accepts, as a qualification to this, that an employer can set selection criteria such that an applicant can be sifted out if they do not meet applicable criteria, for instance related to length of service. However, it would be unlawful for an employer to use the mere fact that the applicant is an agency worker as one such criterion.
The issue arising on this appeal is whether this analysis is correct. The underlying issue is as to the extent to which temporary agency workers are entitled to non-discriminatory parity of treatment in the workplace with directly employed permanent workers. I would add that it is common ground that the analysis of the issue is unaffected by the departure of the UK from the European Union.
B. The relevant facts
The relevant facts are not in dispute and can be taken from the judgments below and summarised shortly. The appellant was employed by Angard for the purposes of the AWR. Angard is an employment agency which is a wholly owned subsidiary of Royal Mail. It provides agency workers exclusively to Royal Mail in order to assist Royal Mail to react to day to day fluctuations in demand for postal workers. As a subsidiary Angard is under the control of Royal Mail which determines the pay and conditions of employment for agency workers employed by Angard. The appellant was supplied by Angard to Royal Mail to work in the Leeds Mail Centre in an operational post grade ( “OPG”).
When vacancies for permanent positions for particular shifts or duties in relation to sorting work at the Leeds Mail Office became available, they were put up on the notice board and offered first to OPG operatives who were already in permanent posts and to those in a reserve class of OPG operatives. Agency workers were not eligible to apply for the posts. They could however apply for vacancies when they were advertised externally, and when they did so, they were in competition with all other external applicants. Royal Mail wished to fill the vacancies without increasing headcount. The EAT endorsed a conclusion made by the ET that “ This system of seniority allows those with longer service to seek out more genial posts without external competition.” There is no dispute as to this.
The procedure adopted was in accordance with an agreement with the relevant union, the CWU.
C. Legal Framework
The Directive
The AWR were made to implement into domestic law the Directive. There is no dispute as to the relevant principles of construction. The AWR must, so far as is possible, be read in a way which gives effect (teleologically) to the purpose of the Directive. The appellant points out, correctly, that the purposive approach adopted towards EU legislation is nowadays on a par with the approach adopted to domestic legislation (see e.g. Hurstwood Properties v Rossendale BC [2021] UKSC 16 at paragraphs [9]–[10]).
The recitals to a Directive identify the relevant travaux preparatoires. In the present case these are (a) the formal 2002 proposal for a directive from the Commission (which includes an Explanatory Memorandum) 1 and (b) an opinion from 2002 of the European Economic and Social Committee (ECOSOC) 2 on the proposal. These can be valuable in providing factual information both about legislative history and the purpose behind the Directive as finally adopted.
The substantive recitals are relevant in determining the purpose of the measure and assist in guiding the interpretation of its substantive terms. In relation to the Directive these describe a variety of different objectives. In particular the Directive strikes a balance between the competing interests of improving the “ security” of employment for temporary workers, and, taking due account of the need for “ flexibility” for employers (e.g. Recital 8). There are a number of other purposes identified including recognising both the diversity of labour markets across the Member States and the importance of collective agreements between employer and employee representative bodies. The principal recitals of relevance to this appeal are as follows.
Recitals [3] – [9] summarise the legislative history and explain the need to strike a balance between the competing interests of improving both worker security and employer flexibility (described as “ flexicurity” in Recital [9]):
“(3) On 27 September 1995, the Commission consulted management and labour at Community level in accordance with Article 138(2) of the Treaty on the course of action to be adopted at Community level with regard to flexibility of working hours and job security of workers.
(4) After that consultation, the Commission considered that Community action was advisable and on 9 April 1996, further consulted management and labour in accordance with Article 138(3) of the Treaty on the content of the envisaged proposal.
(5) In the introduction to the framework agreement on fixed-term work concluded on 18 March 1999, the signatories indicated their intention to consider the need for a similar agreement on temporary agency work and decided not to include temporary agency workers in the Directive on fixed-term work.
(6) The general cross-sector organisations, namely the Union of Industrial and Employers' Confederations of Europe (UNICE) (4), the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) and the European Trade Union Confederation (ETUC), informed the Commission in a joint letter of 29 May 2000 of their wish to initiate the process provided for in Article 139 of the Treaty. By a further joint letter of 28 February 2001, they asked the Commission to extend the deadline referred to in Article 138(4)
by one month. The Commission granted this request and extended the negotiation deadline until 15 March 2001.(7) On 21 May 2001, the social partners acknowledged that their negotiations on temporary agency work had not produced any agreement.
(8) In March 2005, the European Council considered it vital to relaunch the Lisbon Strategy and to refocus its priorities...
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