10 January 2014 #Employment
Agency workers are often referred to colloquially as being temporary workers or ‘temps’, as a distinction from directly recruited, usually permanent staff. The recent case of Moran v Ideal Cleaning Services and Celanese Acetate Ltd in the EAT, however, has highlighted just how important that phrase is to the scope of the Agency Workers Regulations 2010 (AWR) and indeed the European Directive upon which it is based.
The individuals in the case had employment contracts with an agency, Ideal Cleaning Services Limited and were placed to work as cleaners with the hirer, Celanese Acetate Ltd. These placements lasted in actual fact for between 6 and 25 years, until ending through redundancy in 2012. They then sought to argue that they were entitled to the protections of the AWR (from 1stOctober 2010), including qualification for comparable pay to directly recruited staff of the hirer, whom they had been working alongside.
In the AWR, an agency worker is an individual who (1) has a contract with an agency (either an employment contract, or a contract to perform work or services personally) and, (2) “is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer”.
In this case, ‘temporarily’ was held to mean ‘not permanent’. Temporary does not mean short term, but permanent contracts do mean those which are open-ended in duration (terminable upon proper notice being given); while temporary contracts will be terminable upon another condition being satisfied, such as the expiry of a fixed term or completion of a project.
As such, the EAT confirmed that the individuals here were not agency workers under the AWR. They were not temps, as they had been placed by the agency on an indefinite and so permanent basis to work for the hirer and the evidence was that all parties viewed the arrangement as being permanent, a view reinforced by the significant time periods involved.
The judge noted that this case highlights a gap in the AWR and the European Directive upon which it is based, when an individual otherwise supplied by an agency will fall outside of the AWR, due to the apparent permanent rather than temporary nature of their placement. It remains to be seen how Tribunals will interpret just when contracts can be considered to be permanent, and individuals being supplied by an agency for long periods may suggest other risks (such as their actual employment status if the reality of the situation does not match the contract). However, this gap in the AWR could be significant when agency placements can often be required to continue on an open ended basis due to the needs of the business.
Ann Marie Burke
Carillion Advice Services