Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Hi Ben I'm Andrew
So to confirm you are not employed by the company direct but through an agency?
I had an interview thinking it was for a permanent position but was offered it on a contract basis they sorted out the agency
I started 24th July 2012
The legislation you may have been referred to are the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which state that a worker employed on a fixed term contract would automatically become an employee after 4 years on successive contracts with the employer. However, you are not a fixed term worker, you are an agency worker so this does not apply to you.
As an agency worker you will have separate rights under the Agency Workers Regulations. These state that from the start of your assignment you have the right to be informed of any relevant vacancies in the hirer during your assignment, in order to be given the same opportunity as a comparable permanent worker to find permanent employment with the hirer.
So if this vacancy is only being advertised to permanent employees and you are not being given the opportunity to apply for it due to your status as an agency worker, the employer would be acting unlawfully.
Ok thanks. They are having a reorganisation at the moment my job has been placed on a closed list that only people who have been displaced can apply for. Does that make a difference?
Ah, that may change things. The Guidance to the Regulations states that the right need not apply in a situation of a genuine head count freeze, for example where the employer is trying to redeploy existing employees in order to avoid making redundancies. That is because redeployment to roles in the context of a redundancy exercise does not amount to a vacancy in the conventional sense
I have just done a quick google search. When I started I was advised to set up a Ltd company and get paid through that I have just found something that implies the these regs don't apply if you have a Ltd company
How would that effect things?
but then you don't get the rights anyway to argue you should be offered the vacancy as these only apply under these Regs
so I don't understand
The only right to claim that you should be given the opportunity to apply for this job exists under the AWR as explained above. However, this right would not apply if this was a job available in a head freeze or used as a redeployment opportunity to avoid having to make permanent employees redundant. You then argue that you were working through a Ltd company and that as a result these Regs do not apply to you - that would not help you either way because if they do not apply then you will not have the right to claim this vacancy should be offered to you in the first place as that is a right that only exists under the Regs, sop either way, you will not be able to challenge this I'm afraid
Ok thanks for your help
You are welcome, all the best