The Employment Appeal Tribunal in the recent case of Coles -v- Ministry of Defence has held that Regulation 13 of the Agency Workers’ Regulations 2010 does not prevent the company giving preference for vacant posts to permanent employees in need of redeployment. Regulation 13 of the Agency Workers’ Regulations 2010 gives agency workers the right to be informed of vacancies in the end use of company for which they work. This is simply a right to information and it does not grant the agency worker any preferential position in respect of opportunities for permanent employment.

Langstaff P. pointed out that the Department for Business Innovation Skills’ guidance appears to be inaccurate on this point as it suggests that the right to be told of a vacancy would not apply in the context of a genuine head count freeze. Article 6 of the Agency Worker’s Directive states that agency workers must be informed of vacancies so that they have the same opportunity as other workers in their undertaking to find permanent employment. This does not mean in the EAT’s view that they must be able to apply for the vacancies on an equal footing. They must be given the same opportunity, which simply means that the information must be provided to them so that they can apply should they wish to do so.