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Cloisters’ barristers Ed Williams and Catriona Stirling win in an important test case regarding the correct interpretation of the Agency Workers Regulations 2010
Case summary provided by Sian McKinley.
In Moran v (1) Ideal Cleaning Services Ltd; (2) Celanese Acetate Ltd the EAT was asked to decide whether the Agency Workers Regulations 2010 applied to workers who had been placed with an end user indefinitely.
The Agency Workers Regulations 2010 provides that agency workers are entitled to the same basic working and employment conditions as if they had been recruited by the end user directly (if they met the qualifying provision of twelve weeks’ service).
Regulation 3 defines an “agency worker” as an individual who:
“(a) is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and
(b) has a contract with a temporary work agency…”.
The claimants were employed by the first respondent and placed with the second respondent. They had worked for the second respondent for between 6 and 25 years until they were made redundant in June 2012.
The claimants made claims that they were agency workers within the meaning of the Regulations.
The issue came before the ET who dismissed their claims. The claimants appealed, but their appeal was rejected by the EAT.
The EAT held that the concept of “temporary” in the 2010 Regulations means not permanent. A permanent contract is one which is indefinite whereas a temporary contract will be terminable upon a condition being satisfied, such as the expiry of a fixed period or the completion of a specific project.
The arrangements under which the claimants worked were indefinite in duration. The EAT concluded these arrangements were therefore permanent rather than temporary and the claimants fell outside the scope of the Regulations.
The EAT also considered whether all agency workers should fall within the scope of the Regulations in order in order to give effect to the purpose of Directive 2008/104/EC, which the Regulations were intended to implement.
The EAT considered it very relevant that the first draft of the Directive had no reference to a worker being assigned (or “posted”) to an end user temporarily. An amendment in 2002 redefined the scope of the Directive to “any person who enters into a contract of employment or employment relationship of indefinite or fixed duration with a temporary work agency, to be assigned temporarily in a user undertaking to work under the direction and supervision of that user undertaking.”
The EAT considered that the interpretation argued for by the claimant would in fact fail to give true effect of the purpose of the Directive and the Regulations. It is not possible to ignore the wording of the Directive and the legal significance of the amendment of the word “temporarily”.
This ground-breaking case is likely to have significant and far-reaching implications for the hundreds of thousands of agency workers in the United Kingdom who are engaged on indefinite contracts with end users.