Do the Agency Workers Regulations 2010 protect agency workers placed with end users for indefinite periods?

Moran v (1) Ideal Cleaning Services Ltd (2) Cleanese Acetate Ltd | 2013

The claimants were employed by Ideal Cleaning Services Ltd, but from the start they were placed with the end user, Cleanese Acetate Ltd. They had worked at Cleanese, at the same site, for many years (some between 6 and 25). The contracts of employment with Ideal stated the place of work as the Cleanese site, gave a start date of employment, stated the hours of work, and cross-referenced to a handbook.

The claimants were made redundant in 2012. They brought a claim under the Agency Workers Regulations 2010 (as agency workers engaged for more than 12 continuous weeks) that they were entitled to the same ‘basic working conditions’ as directly employed counterparts.

The employment tribunal decided they were not agency workers and therefore not entitled to the protection of the Regulations.

Under the Regulations an agency worker is someone who has

‘a contract of employment or employment relationship with a temporary work agency’ and is ‘assigned to user undertakings to work temporarily under their supervision and direction.’

The claimants had contracts of employment with Ideal and were assigned to work for Cleanese under their supervision and direction. The claim failed however because the employment judge concluded the assignments were ‘indefinite’ or permanent and not ‘temporary’ as the Regulations required.

The employment judge commented that the contracts of employment had many features of a permanent contract – including a specific place of work and specific hours of work, which a temporary contract was unlikely to include.

The Employment Appeal Tribunal agreed.

This will be a welcome decision for businesses using agency workers. Under this decision, workers who are placed with end users for an indefinite period (and we believe there are many) will not be protected and entitled to the same ‘basic working and employment conditions’.

When does a contract change from being temporary to permanent? This is a big grey area introduced by this decision. Who is a temporary agency worker entitled to protection under the Regulations and who is an agency worker engaged under an indefinite or permanent contract but is not protected?

Businesses using agency workers should review all of their arrangements, taking into account what they want to achieve. It may be appropriate to ensure that assignments are limited to a defined period or long-term assignments are treated as a renewal of individual assignments or do nothing. Quantrills would be delighted to discuss your objectives and options. Just get in touch.