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back to index backGLOBALtalk July,  2014


UK: Agency Workers on Indefinite Contracts are Not Protected by the Agency Worker Regulations

The EAT has upheld a Tribunal's decision that agency workers who were assigned to a client on indefinite contracts were not "temporary" agency workers and therefore fell outside the scope of the Agency Worker Regulations.

Background
The Agency Worker Regulations 2010 ("Agency Worker Regulations") gives agency workers the right to use a hirer's collective facilities and amenities, and access to the hirer's job vacancies.  After 12 weeks, it also gives them an entitlement to the same basic working conditions (including pay) as employees who are employed directly by the hirer.  An agency worker is defined as an individual who is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer, and has a contract of employment or contract to perform work and services personally for the agency.

Moran and others v Ideal Cleaning Services
The Claimants were employed as cleaners by Ideal Cleaning Services.  From the start of their employment, they were placed with Celanese. The Claimants worked there for between 6 and 25 years before their dismissals for redundancy. The Claimants claimed that they were agency workers under the Agency Worker Regulations.

At a pre-hearing review, the Tribunal found that the Claimants were not agency workers under the Agency Worker Regulations because their assignments were not temporary.  The Tribunal came to this decision looking at the dictionary definition of the word temporary, which is defined as "not permanent; provisional" and "lasting only a short time".

The Claimants appealed to the EAT arguing that (i) the Tribunal had wrongly interpreted the meaning of temporary to mean "short term" rather than "not permanent", and (ii) all agency workers who meet the qualification period of 12 weeks fell within the scope of the Agency Worker Regulations.

Decision
The EAT rejected both arguments and dismissed the appeal.  The EAT clarified that temporary meant "not permanent" rather than "short term".  In employment, a permanent contract is one that is open-ended in duration, terminable on the giving of notice, whereas a temporary contract is terminable upon some other condition being satisfied, for example, the expiry of a fixed period or the completion of a specific project.  The Tribunal had correctly found that the Claimants were working on indefinite assignments, which were permanent and not temporary.

Looking at the history of the development of the Temporary Workers Directive (the "Directive") and noting in particular that the reference to "temporary" agency workers was a later addition to the text, the EAT considered that the addition was intended to have legal significance.  There was therefore nothing to suggest that the EU had intended for permanent agency workers to be protected under the Directive.

Comment
This decision limits the scope of the Agency Worker Regulations.  It was clear from the facts of this case that the agency workers' assignments were permanent.  However, in other cases, the position may not be so clear cut.  Agency workers may often be engaged on an indefinite contract where it is not clear how long they will be required and there may be scope for argument about whether such contracts are temporary or not.  It is likely that Tribunals will be alert to attempts to avoid the application of the Agency Worker Regulations by engaging temporary workers on indefinite contracts and relying on short notice provisions.  

We understand that the Claimants have applied for permission to appeal the EAT's decision.

Source: Baker & McKenzie - GAI





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