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08 Jan

The Agency Worker Regulations do not cover workers engaged indefinitely

In Moran & Ors. v (1) Ideal Cleaning Services Ltd and (2) Celanese Acetate Ltd. EAT/0274/13/DM the Honourable Mr Justice Singh held that the concept of ‘temporary’ in the Agency Workers Regulations 2010 SI 2010/93 and the EU Temporary Agency Workers Directive (No.2008/104) means ‘not permanent’.  Thus, an Employment Judge had been right to find that agency workers did not come within the scope of the Regulations where their agency arrangement was on an indefinite and not a temporary basis.

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Temporary Workers

The Agency Worker Regulations do not cover workers engaged indefinitely

In Moran & Ors. v (1) Ideal Cleaning Services Ltd and (2) Celanese Acetate Ltd. EAT/0274/13/DM the Honourable Mr Justice Singh held that the concept of ‘temporary’ in the Agency Workers Regulations 2010 SI 2010/93 and the EU Temporary Agency Workers Directive (No.2008/104) means ‘not permanent’.  Thus, an Employment Judge had been right to find that agency workers did not come within the scope of the Regulations where their agency arrangement was on an indefinite and not a temporary basis.
The Claimants were employed for between 6 to 25 years by ICS Ltd until they were made redundant. From the start of their employment they were placed to clean only for the Second Respondent. After the Agency Workers Regulations 2010 came into force the Claimants lodged claims that they were agency workers within the meaning of the Regulations (i.e. claiming that they had the same basic working and employment conditions as if they had been recuited by the Second Respondent directly).
At a Pre-Hearing Review an Employment Judge held that the Claimants did not come within the definition of ‘agency workers’ in Reg 3, which refers to workers  “supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer”. The Employment Judge stated that, as the Regulations do not define ‘temporary’, he would use the dictionary definition. Thus, in his view, the length of the arrangement meant that it could not qualify as a ‘temporary’ arrangement as required by the Regulations. The Claimants appealed against that decision.
The EAT dismissed the appeal. It noted that it was not helpful for the Tribunal Judge to say he was adopting the dictionary definition of ‘temporary’ when it had two different meanings. ‘Temporary’ can mean ‘not permanent’ or it can mean ‘short-term’. A fixed-term contract may be regarded as temporary because it is not permanent, i.e. of indefinite duration, even though it would not normally be regarded as short-term. However, the Employment Judge had not made this mistake. What he was saying was that the arrangement under which the Claimants worked was indefinite, therefore permanent and not temporary (a temporary contract being terminable upon a condition being satisfied). They therefore fell outside the scope of the Regulations.  The employment judge was correct, as a matter of law, in reaching that decision.
The Regulations only apply to workers supplied by a temporary work agency to work temporarily for the end user.
The EAT rejected the argument that all agency workers should fall within the scope of the Regulations provided that they meet the 12-week qualifying period. It held that there would be no need for the Regulations and the Directive to state that they specifically apply to ‘temporary’ agency workers if the word could simply be ignored. The EAT went on to note that, if this is a lacuna, it is one deliberately left by the EU legislators.  [Judgment handed down 13 December 2013]

Naveen Agnihotri

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