Under the Agency Workers Regulations 2010, an agency worker is someone who ‘… is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer…’ The Regulations protect agency workers by entitling them after a 12 week qualifying period to the same basic working and employment terms as if they were employees of the end user. In a recent case, the EAT considered the definition of agency workers under the Regulations and, in particular, the need for the workers to be supplied ‘temporarily’.
The Claimants were employed by a cleaning agency (Ideal Cleaning Services Limited, the first Respondent) and, from day one of their employment, were placed with Celanese Acetate Limited (the second Respondent). The Claimants had worked for Celanese Acetate for between 6 and 25 years until they were made redundant. They argued that the Regulations applied to them and that, as agency workers, they were entitled to the same basic working and employment conditions as if they had been recruited by Celanese Acetate directly. Both Respondents argued that the Claimants could not be agency workers because they were not working ‘temporarily’, as they were appointed to work for an indefinite period.
At a pre-hearing review, the Employment Tribunal agreed with the Respondents and held that, because the Claimants were not engaged on a temporary basis, and as such they were not agency workers as defined in the Regulations. The Claimants appealed to the EAT on this point.
The EAT upheld the Tribunal’s decision, finding that the Claimants had been placed by Ideal Cleaning with Celanese Acetate on a permanent, not a temporary, basis. Accordingly, it held that the Claimants were not entitled to protection under the Regulations.
The EAT noted that the word ‘temporary’ can mean something that is not permanent or it can mean something that is short term. However, it explained that it is clear that the two are not the same, as a fixed-term contract which lasts many months or even years is temporary but cannot be described as short term. The EAT held that, in the context of the Regulations, the concept of ‘temporary’ means ‘not permanent’. It commented that ‘permanent’ means indefinite or, in other words, of open-ended duration.
This decision is significant as it indicates that the Agency Workers Regulations 2010 do not apply to all agency workers who satisfy the 12 week qualifying period as they do not apply to individuals who are placed with a hirer indefinitely. This presents a gap in the protections previously understood to be available to agency workers, and could affect a vast number of agency workers in the UK. The EAT commented that if this is a lacuna in the protections available it is one deliberately left there by the European legislators. As a consequence of the potential significance of the decision it may be subject to further appeal.
Moran & ors v Ideal Cleaning Services Limited and Celanese Acetate Limited