Labour & European Law Review Weekly Issue 358 26 February 2014
The Agency Workers Regulations 2010 were introduced to protect agency workers who worked “temporarily” for a hirer. In Moran and ors v Ideal Cleaning Services Ltd and Celanese Acetate Ltd, the Employment Appeal Tribunal (EAT) held that, as “temporary” meant “not permanent”, the regulations did not cover agency workers on indefinite contracts.
Thompsons was instructed by Unite the Union to act on behalf of the claimants.
Mr Moran and his colleagues had all been employed for between 6 and 25 years by Ideal Cleaning Services Ltd. It had placed them as industrial operatives (although their contract described them as cleaners) from the start of their employment with Celanese Acetate until they were made redundant in late 2012.
They claimed that, as agency workers within the meaning of the Agency Workers Regulations 2010, they were entitled to the same basic working and employment conditions as if they had been recruited directly by Celanese Acetate (the hirer).
Ideal argued that, due to the length of the arrangement with Celanese, it could not qualify as “temporary”.
Regulation 3 of the Agency Workers Regulations 2010 defines an agency worker as someone who is supplied by a temporary work agency to work “temporarily” for and under the supervision and direction of a hirer.
As the word “temporary” is not defined in the regulations, the judge decided to use the dictionary definition which defined it as “not permanent; provisional; lasting only a short time; briefly; for a short while”.
On that basis, he held that the claimants could not be agency workers within the meaning of regulation 3 as they all had contracts of indefinite duration with Ideal whereby they had been placed to work long-term at Celanese. These could not be defined in any sense as “temporary”.
The claimants appealed on the basis that the judge had wrongly decided that “temporary” equalled “short term”; and that the correct interpretation of the regulations meant that all agency workers should be covered by them as long as they met the 12 week qualification period laid down in regulation 7.
The EAT held that, although the judge had adopted a definition of “temporary” which could have meant either “not permanent” or “short term” (which are not the same thing), he decided in the end that it meant “not permanent”, which was the correct interpretation. In other words, he had found that the arrangements were “indefinite in duration and therefore permanent and not temporary”.
Nor could the EAT agree with the claimants’ second argument as that would not give the true effect to the underlying purpose of both the regulations and the directive on which they were based. The concept of “temporary” that was introduced into the Directive by an amendment strongly suggested that it was legally significant and should be given effect.
Although this might leave a gap in the protection provided for under the regulations, the EAT said that it was a gap that had been left deliberately by the legislative institutions of the EU which included parliament.
The regulations already provide for derogations beyond the 12 week qualifying period, in particular, the Swedish derogation, where a worker has a permanent contract of employment and is paid between assignments and by virtue of this is excluded from the rights provided for by the regulations.
The effect of this decision is that many agency workers will fall outside the protection of the regulations unless they can demonstrate that their assignment is limited in terms of duration, analogous to a fixed term working arrangement. Temporary work agencies are likely to issue their workers with contracts which are indefinite in duration as a means of falling outside the protection of the regulations.
Permission to appeal has been requested from the Court of Appeal and a decision is awaited.