Dominik Kocur v Angard Staffing Solutions Limited

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:

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.

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.

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) (Footnote: ¹) and (b) an opinion from 2002 of the European Economic and Social Committee (ECOSOC) (Footnote: 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]):

Recitals [10] and [11] explain how striking this balance contributes to job creation and integration of labour markets. Recital [11] in particular recognises that temporary workers might have characteristics related to their “working and private lives” which differentiate them from permanent workers. To foreshadow a point I make later in relation to the application of the principle of non-discrimination, the Directive recognises that temporary and permanent workers are not in all respects comparable and that therefore wholesale parity between the two types of worker might not be achievable as an objective or purpose. Workers might prefer temporary employment for personal and family reasons, and it is well known that in some sectors agency workers receive higher rates of pay than permanent equivalents. Moreover, the very concept of business flexibility recognises that for some undertakings whose business model is characterised by fluctuating demand the ability to hire temporary staff is an important facility:

Recital [12] explains that the balance struck by the Directive is intended to be “protective” and meet the requirements of non-discrimination, transparency, proportionality and which, simultaneously, respects the diversity of labour markets and industrial relations:

Recital [14] explain how the principle of parity between temporary and permanent workers (non-discrimination) should, as a minimum (see “at least”), apply to a “basic” set of working conditions:

Recitals [15] – [19] refers to the need to respect collective agreements which might depart from the terms of the Directive:

Turning to the substantive provision of the Directive, Article 1, entitled “Scope”, explains that it applies to workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction.

Article 2 entitled “Aim”, on the purpose of the Directive, is a legislative catch-all. It reflects the purposes elaborated upon in the recitals. It is significant because it also recognises that the agencies themselves can be employers, a point of relevance to the rights and obligations set out in Article 6 (below) which include obligations imposed upon the agency employer itself designed to protect temporary workers. Once again it describes the balancing exercise that has been struck between protecting temporary workers and improving the quality of their working conditions, contributing to job creation, and the development of flexible ways of working:

Article 3 sets out definitions. For present purposes the word “assignment” was considered by the Court of Appeal in Kocur v Angard Solutions Ltd [2019] EWCA Civ 1185 (“Kocur 1”) where a similar issue to the present was raised (see paragraph [63] below). The word “basic” (as in “basic working conditions”) is important because it serves to define and limit the scope of the application of the principle of non-discrimination in Article 5. The “basic” working conditions are limited. They refer to matters central to a contract of employment that has been accepted (duration of working time, overtime, breaks, rest periods, night work, holidays, pay). They do not extend to the terms upon which the prior appointment process operates:

Article 5(1), entitled “The principle of equal treatment”, applies the principle of non-discrimination to the “basic” working conditions as defined in Article 3:

Article 6 is the provision upon which Regulation 13 AWR is based. It concerns “Access to employment, collective facilities and vocational training”. Article 6(1) - (3) create a bundle of rights which seek to improve the position of temporary agency workers. Article 6(1) is concerned with provision of information about vacancies. Article 6(2) seeks to ensure that, in their capacity as employers, agencies do not impose upon agency workers contractual restrictions which prevent them from becoming permanently employed with hirers upon expiry of their assignment. This also makes clear that agencies are entitled to reasonable recompense from hirers for their agency services. Article 6(3) prohibits agency employers from charging fees to workers who become employed by hirers:

Article 9, entitled “Minimum requirements”, confirms expressly that the Directive is an instrument of minimum harmonisation only. Members States may, if they wish, grant more extensive rights but should not, save where otherwise permitted under the Directive, grant levels of protection lower than the stipulated minimum:

I turn now to the AWR which implement the Directive. These create certain rights for agency workers which are in place from the commencement of the temporary work assignment (so called “Day 1 rights”) and other rights coming into being only after completion of a 12-week qualifying period. These are termed “qualifying periods” and are defined in Regulation 7 (see below). The right to be notified of vacancies under Regulation 13(1) is a Day 1 right.

Regulation 5 implements the principle of non-discrimination in relation to the “basic” rights of temporary workers vis à vis comparable workers. It is entitled “Rights of agency workers in relation to the basic working and employment conditions”:

Regulation 6 equates “Relevant terms and conditions” with the definition of “basic” rights in Article 3 of the Directive:

Relevant “qualifying periods” are set by Regulation 7:

Finally, Regulation 13, the provision in issue in this appeal, is headed “Rights of agency workers in relation to access to employment”. It provides:

The appellant argues that the EAT erred when finding that the right to be informed under Regulation 13 and Article 6(1) did not extend to a concomitant right to apply and be considered for the notified vacancy. The appellant criticises the EAT for adopting an unduly narrow interpretation of the relevant provisions and contends that they must be construed broadly. A summary of the appellant’s arguments is as follows.

First, the purpose of Regulation 13 is to ensure access to employment which cannot be achieved simply by affording a limited right to be informed of vacancies. The corollary of a right to receive information is a right to apply and be considered for the notified vacancy. Without the latter, the former is meaningless. By its terms the Regulation goes beyond simply conferring a right to receive information. It expresses as the purpose behind the conferral of that right: “… to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer”. These words, it is argued, implicitly embrace a right to apply and be considered for a notified job. That “opportunity” to “find permanent employment” is sterilised if a worker is notified of a vacancy that cannot be applied for.

Secondly, this conclusion is consistent with a purposive approach to interpretation of Regulation 13 in the light of the Directive. The purposes entail: creating a protective framework for temporary workers; improving the quality and security of their employment; achieving non-discrimination as between temporary and permanent employers; and ensuring that temporary workers are treated proportionality and that their rights have “effet utile” (effectiveness). An interpretation which allowed the hirer to treat comparable permanent workers more favourably than temporary agency workers in relation to vacancies would collide with all of these purposes and would be contrary the purposes of the Directive and, hence, the AWR.

Thirdly, the EAT ignored the fact that the appellant’s argument would not undermine business flexibility which it is acknowledged is a stated purpose of the Directive. This is because even if a (non-discriminatory) right to apply and be considered is accorded to temporary and permanent workers alike that does not prevent employers from then applying selection criteria which means that the temporary worker is not appointed. However, the selection criteria cannot be based upon the difference between the status of temporary and permanent workers (see paragraph [4] above). More especially the appellant accepts, therefore, that an employer could, by use of appropriate selection criteria, both protect permanent workers at risk from redundancy and reward long service. In relation to redundancy the appellant in written submissions argued:

Fourthly, a broad interpretation is supported by reference to different language versions of the Directive. For example, under the French version Article 6(1) refers to “obtenir” rather than “trouver” (“find”) in relation to work:

Fifthly, the heading to Article 6, which starts with the words “Access to employment…”, showed, yet again, that its purpose was in a real and practical sense to provide opportunities to agency workers to obtain actual “employment”, and this purpose could not be fulfilled by notification of a vacancy from which agency workers were disqualified and which were therefore inaccessible, even if otherwise qualified for the post. The second half of the first sentence of Article 6(1) and Regulation 5(1), which refer to giving agency workers the same opportunity as other workers in the employer’s undertaking to find permanent employment, buttresses this conclusion. These words would be otiose if the EAT’s interpretation was correct since the right conferred by those provisions would be valueless.

Sixthly, as to the judgment of the EAT in Coles (ibid) relied upon by the EAT (and summarised at paragraph [3] above) this was distinguishable on its facts. The logic of that ruling was limited to cases where preferential treatment was accorded to direct employees at risk of dismissal for redundancy, which was not the position here where the advantaged pool of direct employees were not at risk of redundancy. The sole differentiating factor here lay in the fact that one category of worker was directly employed and the other was indirectly employed which was a distinction without any relevant or proper difference. As such the differentiation was unjustified discrimination. In any event on the appellant’s analysis an employer could use selective criteria in a redundancy case to favour existing directly employed workers. Finally, Coles did not bind this Court, even if it did bind the EAT.

Seventhly, and finally, Article 6(1) of the Directive has direct effect, and is enforceable directly against Royal Mail, as an emanation of the state. Therefore, if Regulation 13 read literally must be construed narrowly, and in a manner which is inconsistent with the broader Article 6(1), this did not prevent the appellant sidestepping Regulation 13, and enforcing Article 6 directly against Royal Mail upon ordinary principles of direct effect.

The issue arising on this appeal is a short point of interpretation. I should start by recording that I agree with the EAT. In my judgment neither Article 6 of the Directive nor Regulation 13 AWR confer on an agency worker a right which goes beyond a right to be notified. It does not extend to a right to apply and/or to be considered for the notified post.

It is common ground, and indeed correct, that Regulation 13 AWR must be construed purposively in the light of the Directive so as to achieve conformity.

The starting point, and the striking feature of both provisions, is that read literally they are concerned only with a right of notification. The operative part of Regulation 13 AWR 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.” Article 6 of the Directive is to the same effect: “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.” The operative duty is one of notification. Neither provision addresses what happens following notification.

To succeed on this appeal the appellant must therefore contend that it is wrong to adopt a literal, and narrow, interpretation of Regulation 13. I would agree that if the purpose of the Directive is to equate notification with a right to apply and be considered then, (and subject to the limits of purposive interpretation in which case the appellant’s seventh point above at paragraph [35] arises) the court will construe Regulation 13 in a manner which achieves this purpose and conforms to the Directive. The question which follows is whether the purpose of the Directive supports the appellant’s contention.

The purpose of the Directive can be divined by reference to well established interpretative techniques.

Analysis of Recitals: First, the Recitals to the Directive are instrumental in identifying both the legislative history (and the relevant travaux preparatoires) and the relevant purposes which then guide the construction of the relevant provisions of the Directive, and in due turn, the implementing measure.

Analysis of substantive provisions: Secondly, the substantive provisions of the Directive read as a whole are also important guides and this includes whether a measure is intended to be a measure of full or only partial harmonisation. This analysis can take into account the legislative history of the measure in question.

Analysis of legislative drafting techniques: Thirdly, a court will consider whether, as a matter of drafting technique, were the appellant to be correct, one would expect the broad right contended for to be writ large in the legislation. If the broad right contended for would entail careful exposition in legislative form, then the absence of such an exposition can be taken as an indication that the legislature did not intend to create such a right.

Analysis of effects and consequences: Fourthly, the court can consider what might be said to be any adverse consequences which would arise if the broad construction were correct. The court can assume that if the legislature had intended to introduce a measure with such consequences it would have deliberately explained why it was taking that position in the Recitals and catered expressly for the issue in the substantive provisions. It follows that if the court can identify potentially adverse effects then the absence of any analysis or recognition of such consequences is, itself, an indication that the legislature did not intend such a result.

I will now consider each of these approaches to construction in turn.

The recitals recognise that the measure balances a number of potentially inconsistent objectives.

The first is the desire to improve the “security” of employment for temporary workers. The achievement of this objective is not straightforward and can involve conflict between the interests of different types of worker. Increasing the security of employment for temporary workers might be at the expense of that for permanent workers. Such cases can involve situations where the employer wishes to reward the loyalty of permanent staff and take steps to increase their welfare, as in Coles (see paragraph [3]), for instance by maximising the chances of their avoiding being made redundant. But by treating permanent staff (relatively) better, temporary staff are disadvantaged because they are offered fewer employment opportunities.

The second is the need for “flexibility”. This also has more than one strand to it. Improved flexibility for temporary workers is a recognised objective. But so is increased flexibility for employers. Again, it is not disputed that it is a permissible purpose for the legislature to wish to enhance employer flexibility. In the Commission Explanatory Memorandum, which accompanied the Commission proposal to the Council and Parliament, the Commission articulated (ibid page [3]) the importance of employer flexibility and the need for it to be balanced with the need to improve the quality of employment for temporary workers:

Other purposes identified in the Recitals include recognising diversity in labour markets and respecting collective agreements between employer and employee representative organisations.

The appellant’s argument necessarily assumes that the purpose of the Directive is to accord a high degree of primacy to the position of temporary employees relative to permanent workers but also vis a vis the hirer. However, this is not a Directive which in relative terms seeks to give priority to one interest over another and in particular to prioritise temporary workers over permanent workers or over hirers. It is a measure which endeavours to strike a pragmatic balance between a variety of different competing objectives without creating any hierarchy of interests. It is not therefore possible to point to any particular purpose and conclude that it has enhanced relative weight and justifies expanding the scope of any given right beyond its natural language.

One part of the appellant’s argument on purpose is that the EAT’s conclusion makes the law meaningless which, it is said, cannot have been the object of the legislature. I would disagree. A right to be notified is a real advantage and this is not gainsaid simply by pointing out that the right could have been more generous and far-reaching. In one sense it suffices to say that the right is simply what it is – a limited right to be notified. In the real world this does confer advantages, even if modest, because as the EAT pointed out, it extends to a right to being given the same information about the vacancies as are given to internal candidates and confers an advantage in that agency workers might have advance or more direct notice if, for instance, it is also advertised to external candidates. It meets the objective of transparency which is recognised in Recital [12] as a purpose of the Directive. The right in Article 6(1) is also part of the package of wider rights set out in Article 6(1) – (3) (see paragraph [21] above) which collectively addresses various aspects of the right of an agency worker to obtain “access” to permanent employment. Further, as the EAT pointed out, it would not be sufficient to give internal candidates full information about the job, including for example, salary rate, job description and job specification, whilst withholding the same level of information from agency workers. Article 6 and Regulation 13 are given substance if the right is understood as a right to be given equal treatment in relation to the provision of information about the vacancy, not just a right to equal treatment to be informed of the existence of the vacancy. The point was neatly encapsulated by Langstaff J in Coles at paragraph [34]: “The information is provided not to secure further employment, but is designed towards helping to find it.” Where a vacancy arises which is open to the agency worker to apply for, and which the agency worker is a potentially suitable candidate for, there is no danger that the agency worker will miss out because she or he is unaware of the vacancy. The EAT put the point in the following way:

At base, the Directive reflects a pragmatic compromise between competing interests. Article 6(1) is part of that compromise. It does not purport to be more than it expressly provides for, namely a limited right to information. There is nothing in an analysis of purpose justifying expanding the right beyond its natural meaning. The task of this Court is to determine where the legislature has struck the balance; it is not to seek to re-shape the compromise reflected in Article 6 and transposed into Regulation 13 or to introduce new rights simply because, on one view, they might make good sense.

I turn now to the substantive provisions of the Directive. As set out in paragraph [38] above on a literal construction Regulation 13 is expressly limited to notification and is silent as to a right to apply or to have that application considered. Does the Directive, when viewed in the round, support the appellant’s conclusion that such a literal interpretation is wrong? In my view when read as a whole the Directive does not support the appellant’s broad interpretation.

First, Article 2, on the aim or purpose of the Directive, explains that whilst protecting agency workers and improving the quality of their employment is important the achievement of that aim must take “into account” the need to establish a “framework” which also contributes effectively to the development of “flexible forms of working”. Given that the Directive balances these conflicting policy objectives then the rights ultimately conferred, for instance in Article 6, necessarily represents a compromise. Viewed thus it is hard for the appellant to challenge the conclusion that the narrow construction of Article 6, as limited to information, is anything more than a deliberate and valid policy choice made by the legislature between a range of possible alternatives.

Secondly, the Directive is a measure of minimum harmonisation, as is made clear in Article 9. When construing Article 6 a court cannot expect it to create a solution to all issues arising in the relationship between temporary workers, employers, and permanent workers. The fact that the legislature could have gone further than it did is therefore nothing to the point. The omission from Article 6(1) of a right to apply and/or be considered does not signify that there is a gap to be plugged by recourse to purposive construction. It means that the legislature consciously left it to Member States to decide whether they wished to accord additional rights to temporary workers over and above the mere right of notification. The legislative history to the Directive underscores the point. That history is summarised in Recitals [3] – [9] (see paragraph [12] above) and further factual evidence is provided in the ECOSOC Opinion. It is evident from these that the issue of the appropriate level of protection for temporary workers in relation to comparables (i.e. permanent employees) was a controversial one which absorbed the energies of representatives of both workers and employers for six years between 1995 and 2001 at which point it became clear that no agreement could be reached (see Recitals [4] – [7]). It then took the Council and Parliament a further 7 years to promulgate the Directive. Paragraphs [1.1] – [1.8] of the ECOSOC Opinion provides further information. They explain that there had been attempts to address the protection given to temporary workers since the start of the 1980’s but, by 1991, with no discernible success. Paragraphs [1.5] – [1.7] explain that in 2000 the Commission sought, in effect, to delegate responsibility to representatives of workers and employers but that this also led to stalemate, importantly, over the precise scope of the duty of non-discrimination as between temporary and permanent workers:

Standing back, the Directive reflects a partial collection of rights and obligations of variable geometry intended to be a bare minimum. There is no scope for courts to add to those rights, where Member States have chosen not to.

Next, Article 5 and the application of the principle of non-discrimination. The appellant places considerable weight upon the incorporation of the principle of non-discrimination into the Directive. The difficulty with the argument is that the principle has limited application under Article 5, which reflects the fact that the positions of temporary and permanent worker were not treated, under the Directive, as comparable in all respects. Article 5 is applicable to “basic working and employment conditions”. The addition of the qualifying expression “basic” indicates that the principle does not apply to facets of employment beyond the “basic”. That term is defined in Article 3(1)(f) as “…(i) the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays; (ii) pay …”. The right to apply for a vacancy is not included within the bundle of rights described as “basic”. The basic rights are those contained in an extant contract of employment; they are rights arising after the contract has been concluded. They do not relate to the process by which contracts come to be offered. There is no support therefore from Article 5 for the proposition that temporary workers must in relation to all aspects of the pre-contract process be given parity with permanent workers.

To be fair the appellant does not argue that the principle of non-discrimination is to be applied without qualification or caveat. It is said that the correct way to ensure that the principle of non-discrimination is balanced with employer flexibility is to permit temporary workers to apply for vacancies but then to allow employers to exclude those applicants by ringfencing certain positions by refence to criteria such as the desire to avoid redundancies and/or the desire to reward long service. The short answer to this is that it is simply not what the Directive says. Upon the basis of the recitals to the Directive and the contents of the travaux preparatoires, there is no hint of such a solution ever having crossed the minds of the Commission, the Council or Parliament. And yet furthermore, the appellant’s argument assumes that when the Directive was adopted (in 2008) temporary workers and permanent workers were treated as comparable in every respect. However, as already observed (see paragraph [13] above) the Directive recognises that temporary workers are not, in all respects, comparable with permanent workers. For instance, Recital 11 of the Directive points out that, relative to permanent employment, temporary workers can meet discrete commercial needs and offer the worker a different work/life balance.

I should say something about Coles. The EAT in Coles construed Article 6 in the same way as the EAT in the present case who, moreover, decided that they were bound to follow that judgment. The appellant says that Coles is distinguishable because it was a redundancy case. I disagree. Article 6(1) is drafted in generic terms which do not permit of any distinction being drawn as between workers who are at risk of redundancy and other workers awaiting redeployment. As Langstaff J pointed out (paragraphs [36] – [37]) the effect of the appellant’s interpretation would be that, in redeployment cases, agency workers would be in a better position than those permanent workers outside the redeployment pool. However, on the appellant’s analysis Article 6(1) (and hence Regulation 13) prevents the employer from treating agency workers less favourably than permanent employees outside the redeployment pool and therefore more favourably than those within the pool.

Finally, as to the reference in the French language version of Article 6(1) the Directive to the expression “obtenir” (not “trouver”) (see paragraph [32] above) this does not assist the appellant. Legislation designed to assist a temporary worker “obtain” work does not, by use of that phrase alone, imply that the worker in question has some inalienable right to apply for a job which an employer does not wish to make available to that worker. When viewed in the context of all the other guides to interpretation it would run counter the purpose of the Directive to attach such a supercharged meaning to this one word which would justify preferring it to the narrower English counterpart.

Next, if the Council and Parliament had intended to provide a right to apply for a vacancy then, judging by the approach that was taken to the drafting of the Directive, they would have addressed this explicitly. The drafting approach adopted was to spell out the basic right and then to lay down minimum procedural requirements designed to ensure its efficacy. So, in the case of Article 6(1) sets out the right to be notified and then stipulates how the information was to be provided (“by a general announcement”) and where (“in a suitable place in the undertaking” where the temporary agency workers are engaged). A right to apply is a more complex right and would have required detailed unpicking in statutory form. It would have material resource implications for the employer and also potentially adverse consequences for permanent workers. Had this been intended the legislature would have spelled out the right and proceeded to describe how it was to be implemented. Indeed, if the appellant’s argument is correct then the legislature would also have had to cater in drafting terms for the complication that employers could use selective selection criteria but not any criteria based upon employment status, a nuanced drafting exercise on any view. The legislature could of course have introduced such a right and duty, but it did not do so, and it is unrealistic to assume that it intended such a right and duty to be introduced by an invisible, unarticulated, side wind.

Finally, I consider the position from the perspective of the possible adverse consequences of the appellant’s argument and what this means as a matter of interpretation. The EAT was struck by the consequences that would arise upon the appellant’s interpretation, and made some observations about effect upon the labour market:

Finally, the approach I have adopted to interpretation is consistent with that taken by the Court of Appeal in Kocur 1 (ibid). The Court there was concerned with the words “for the duration of their assignment” in Article 5 of the Directive and “the duration of working time” in Regulation 6(1)(b) AWR. The appellant in that case (who is also the appellant in this appeal) had been supplied to work for Royal Mail on a variable hours contract. He was typically offered 20 hours work per week. Article 5 of the Directive provides that there should be parity in relation to “basic” terms and conditions which includes working hours. The appellant argued that under Regulation 6, as interpreted in the light of the Directive, he was entitled to parity of treatment with directly employed, permanent, workers who were offered 39 hours per week. The Court of Appeal disagreed. It held that construed naturally the Regulation and the Directive were, in effect, referring only to the (in this case variable) hours for which the agency worker was contracted. There was no basis for taking any broader view, or otherwise limiting or overriding freedom of contract, by reference to purpose as understood from an analysis of the recitals and the substance of the Directive and indeed the broader framework of employee protection (such as the Working Time Directive). The Directive was a compromise balancing employee rights against the needs of employers for flexibility. It followed that the question for the court was simply to identify where the legislature had “struck that balance” (paragraph [36]). It had not been struck upon the basis that agency workers were entitled to parity of actual hours with permanent workers. The Court also considered the “practical consequences” of the appellant’s interpretation (paragraph [35]). If the appellant was correct, then employers would no longer be able to “address peaks and troughs in their demand for labour by offering variable hours of work for agency workers and that flexibility would thereby be substantially reduced” (paragraph [36]). This consequence was antithetical to the purpose of the Directive and as such militated against an interpretation which led to that result.

In my judgment the EAT correctly interpreted Regulation 13. I would dismiss the appeal.

I agree.

I also agree.