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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46197
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been employed as a contractor for a large IT company

Resolved Question:

I have been employed as a contractor for a large IT company for 11 years. The particular work we undertake is being outsourced to another company and as such we have been told we are transferring to the new company under the TUPE regulations.

In parallel to this, the company I currently work for (as a contractor through an Agency) advertised 3 roles that were to remain in the company to facilitate the post transition work i.e they will need to keep some roles within the company to support the work that will no longer be done in house.

I applied for one of these roles, but was told that because they didn't have the business approval to hire externally they were not interviewing external candidates.

It since transpired that the roles were advertised externally and one of them has been filled by an external candidate (although not the particular vacancy I applied for)

Is it unfair that I was not treated equally to the internal applicants who were interviewed for the role by being denied an interview due to my contractor status? I have very relevant skills and elements of the job description were part of the role I was already undertaking prior to the TUPE transfer...

Thanks in advance for any advice...
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What is your employment status, are you an agency worker, self employed or an employee?

Customer:

Hi, I guess I am an agency worker.....I physically work in IBM but am employed and paid by Adecco. I have a contract of employment with Adecco with continuous service since 2002

Ben Jones :

ok thanks let me get my response ready please

Customer:

thank you

Ben Jones :

Slightly off topic but I am surprised you are being TUPE’d over as that only covers employees and not agency workers or contractors. But anyway, in relation to the recruitment for the available positions, you will have some rights under the Agency Workers Regulations 2010. These state that from the start of their assignment with the end user, an agency worker has the right to be informed of any relevant vacancies in the hirer during their assignment, in order to be given the same opportunity as a comparable worker to find permanent employment with the hirer (regulation 13(1) of the AWR).


 


So you have the right to be informed of such vacancies and to apply for them, as long as permanent employees working for the employer are allowed to do this as well. However, it does not guarantee you the job and there are no constraints on the employer rejecting your application after the sifting stage just because you are an agency worker.

Customer:

Thanks Ben, the TUPE arrangement was applied to all the employees (IBM and Contractors) who were in the affected roles, however all the IBM employees were offered voluntary redundancy prior to the TUPE date and none of them will actually TUPE across.

Customer:

So basically, we have the right to view and apply for oppurtunites within the company but there is no obligation to treat our application in the same way as a regular employee?

Customer:

and the fact that they interviewed other external applicants but didn't interview me for a role very close to what I am doing already makes no difference?

Ben Jones :

I think you are just transferring over your assignment to the new employer in an arrangement similar to TUPE but it is not the actual TUPE laws that would apply here as they do not cover agency workers. But yes you are correct, you should be notified of existing vacancies in the same way as other internal employees but it does not mean your application should be treated the same. You have no rights to compare yourself to external candidates, your protection only applies when compared to internal ones, employed by the company that has the vacancies

Customer:

ok thanks, XXXXX XXXXX confused about the TUPE aspect than I was before now.....the letter I have from my employer explains that we will transfer under the TUPE regulations and refers back to these phrase a number of times.They have followed the process I would expect having looked at the TUPE regulations online (consultation, statement of measures etc) so I guess I am better off not questioning this? You have answered my question in regard to the other vacancies though, so I know there is nothing to pursue there. Thank you

Ben Jones :

if they are following the TUPE regulations as they would do normally then there is no issue here, I was just highlighting that I am surprised they are relying on them if you are an agency worker as only employees are covered by them

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46197
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 3 years ago.
Hello Sarah, please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this? Thank you

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