In Moran v (1) Ideal Cleaning Services Ltd and (2) Celanese Acetate Ltd, the Employment Appeal Tribunal (the “EAT”) has held that the Agency Workers Regulations 2010 (the “Regulations”) do not apply to agency workers placed with a hirer indefinitely.

The law

The Regulations implement Directive 2008/104/EC (the “Directive”) and provide, amongst other things, that agency workers are entitled to the same basic working and employment conditions as if they had been recruited by the hirer directly, provided that they have worked for a hirer for at least 12 weeks.

Regulation 3 defines an agency worker as an individual who: (i) is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and (ii) has a contract with a temporary work agency.

The facts

The claimants were employed by Ideal Cleaning Services Ltd but placed to work as agency workers at the premises, and under the supervision of, Celanese Acetate Ltd. This arrangement continued for some considerable time, with all of the claimants having been placed with Celanese for between 6 and 25 years when their contracts were terminated in 2012. The claimants brought claims that they were agency workers under the Regulations and entitled to protection as such.

The tribunal dismissed their claims on the basis that the work they had carried out for Celanese had not been temporary in nature and did not therefore fall within the scope of the Regulations. The claimants appealed.

The EAT’s decision

The EAT confirmed that the Regulations did not apply to the claimants. In reaching its decision, the EAT focused on the fact that the Regulations only apply to agency workers who work temporarily for the hirer, and confirmed that a temporary assignment is one which will terminate on a particular condition being satisfied, such the expiry of a fixed period or the completion of a specific project.

In the instant case, the period for which the claimants worked for the hirer was indefinite. The EAT concluded that the arrangements were therefore permanent rather than temporary and the Regulations did not apply to the claimants.

Comment

The decision means that agency workers who can be shown to work indefinitely for a hirer will not fall within the scope of the Regulations. The EAT acknowledged that this leaves a gap in the scope of protection for agency workers, but stated that this had been deliberately created by the drafters of the Directive.

This raises the question of whether this decision will lead to temporary work agencies (and hirers) using indefinite assignments as a means of preventing agency workers from falling within the scope of the Regulations.  The full judgment can be viewed here: