Advise wanted from an HR bod, about temp rights

[Otta]

The place I am currently working is going through a big restructure, some people are losing their jobs, or being regraded. Some are going through redeployment.

My colleague / friend is a temp, who has been in post for 15 months.

I know laws have recently changed, and temps now get access to the same employment rights as permanent workers, when it comes to things like sickness.

My question is this...

If a new post is being advertised internally, and put forward for redeloyment, should he have the right to apply?

HR here are saying no, whilst his agency are saying yes. I want him in this post, because we get on, and the alternative might be working with a total pain in the arse. Can anyone shed any light on exactly what his rights are now?

[StraferJack]

Temp or agency staff?

There is usually something in agency contracts which prevent them joining the place of work fulltime until a period (usually 6 months has passed?)

But that is usually at the behest of the agency so they don't lose good staff - seems a bit odd that the main employer is saying no and the agency is saying yes in this case

But there should be something about this specifically in his contract

[Guest]

I think in normal circumstances he would be able to apply, but in the context of a reorg priority would be given to anyone with a contract of employment directly with the company, whose role is at risk of redundancy and who has appropriate skills and experience. This is because the company has a legal obligation to offer them an alternative role, if one is available, before making them redundant. It's usual for companies to implement a hiring freeze until all that has been completed. However, if no one at risk and with suitable skills applies for the role then your friend should be able to be considered for it.

[Otta]

Strafer, he is agency, and yeah, the agency may well expect a "finders fee" if he joins the organisation within 6 months. That is certainly my experience.

Ms B, I suspect you may be right about the option of redeloyment for those losing their jobs. So perhaps we just need to hope that no one wants this post (unlikely).

It's such a shame, because he was brought in, and given a big mess to sort out, which he has done, and without him holding all the threads together, a whole project would have fallen apart by now. Instead, we'll probably end up with some union member who will claim that everything is "not in my job spec", and basically be fecking useless!

[katie1997]

Otta - I got the advice below from an employment lawyer friend (but sadly I think you are probably gonna be proved right about what you think might happen, such as your company employing someone who isn't as good as the agency temp to do it)...hope it helps anyway.

'If he is employed by an Agency and supplied to your company (the Hirer), then there is no employment relationship between him and the Hirer, his employer is the Agency. The Hirer could simply instruct the Agency not to supply workers any longer as they are not needed, Agency temps are generally the first to go in any reorganisation, that's the benefit to the Company in using Agency staff (i.e. they don't normally appear as headcount on budgets). Agency workers have new rights but they would not provide them with priority for vacancies over the Hirer's own employees.'

[katie1997]

whoops sorry just reading the rest of thread and think have just said basically what MsB did also. It sounds like the HR department at the company have been instructed not to hire anymore staff during the restructuring tho.

[paragon]

I don't think there is a hard and fast law answer to this as the law changed in December 2011. There won't be enough case-law to back up any argument.

The Agency Workers Regulations stemmed from the EU Agency Workers Directive. Essentially they give the same rights to facilities and vacancies (from Day 1) and pay equal to an internal permanent person in the same role (after Week 12).

The law means that agency workers should be given the same visibility and right to apply for Permanent jobs as people working on perm contracts. There is a clause that gives "objective justification" for not allowing equal treatment and there has been some industry speculation that this may include redundancy situations.

Ultimately the Agency won't have a clue as they are mostly muppets who are after a temp to perm fee. I think HR probably have a strong case on this one, but case law may prove this wrong.

The acid test, is that if you mate doesn't get the job and someone less experienced does then they would have a case to go to tribunal. But not everyone wants to do that.

[paragon]

Otta,

If you want to argue the case with HR email them with this...

"I'm confused about your decision to not allow XXX XXX to apply for this role. My understanding was that under the Agency Workers Regulations of 2010 temporary workers had equal access to vacancies as permanent members of staff. I understand there is a provision for objective justification to not allow equal access. Are you saying that there is objective justification in this instance?"

Obv.. you'll sounds like a bit of a t1t and not always the best people to argue with. but it should make them show their hand.

EDIT for their/there

[katie1997]

So essentially temps can apply as they have a right to be informed about relevant vacancies with the company but it will be up to the employer who they appoint and I guess...in most cases their own staff will be preferable?

[paragon]

They may be preferable but deciding based just on that basis is illegal....

If their own employee would be made redundant if they didn't get the job then it MAY be objective justification but this is not yet backed by tribunals...

[Alan Medic]

AWR......Official Guidance

  Quote

He has the right to apply. On what grounds did HR say 'no'?

[Otta]

They didn't, they just said it wasn't open to him.