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11 April 2014

Agency Workers Regulations do not apply to workers hired indefinitely

Businesses using agency staff for indefinite periods do not need to provide them with basic employment rights as they are not 'temporary', as required by the relevant laws.

The Agency Workers Regulations 2010 (AWR) came into force on 1 October 2011 and implement EU Council Directive 2008/104/EC – the Temporary Agency Work Directive – into domestic legislation. The AWR apply to those workers who are supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer. Under the AWR, once a temporary agency worker has worked in the same job for the same hirer for a period of 12 calendar weeks, they are entitled to the same basic employment and working conditions as if they had been recruited directly by the hirer.

In Moran and Others v Ideal Cleaning Services Limited and Another, the Employment Appeal Tribunal (EAT) has ruled that agency workers who are placed with a hirer indefinitely do not qualify for protection under the AWR.

The workers in this case had, for many years, been assigned by Ideal Cleaning Services Limited to work at the premises of Celanese Acetate Limited or its predecessor, Courtaulds Acetate, until they were made redundant in late 2012. The workers claimed that they were temporary agency workers within the meaning of the AWR and thus entitled to the same basic working and employment conditions as if they had been hired by Celanese Acetate Limited directly. When their claims were rejected, the issue came before the Employment Tribunal (ET). 

The ET found that the workers could not properly be viewed as 'temporary' workers because the length of the assignments – one of the claimants had worked at the same premises for more than 25 years – indicated that the placements were 'permanent', in the sense that they were indefinite.

In dismissing the workers' appeal, the EAT rejected arguments that the ET had erred in law in misinterpreting the word 'temporary' in the AWR as meaning 'short term'. The ET had correctly understood it to mean 'not permanent' and was entitled to find that, as their assignments were open-ended in duration, the workers could not therefore fall within the definition of temporary agency workers.

In a 'fundamental submission', the importance of which went beyond the facts of the particular case, the workers also argued that all agency workers should be viewed as entitled to protection under the AWR once they have met the 12-week qualification period. It was their contention that the underlying 'social justice' aims of the Directive – in particular the principle of equal treatment as between agency workers and permanently employed staff who work alongside them at the same premises – required such an interpretation of the AWR.

The EAT dismissed these arguments, however. In its view, such a reading of the AWR would rob the word 'temporary' of all meaning and effect. In so far as it might be thought by some people that the inclusion of the word in the Directive gave rise to a gap in the protection afforded by the legislation, that lacuna had been deliberately left in place by the legislative organs of the European Union.

For advice on any contractual matters please contact the employment team on employmentlaw@bpcollins.co.uk or call 01753 279029.

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