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AWR protections may not cover workers on ‘indefinite’ assignments

Posted by Lesley Furber on Jan 8th, 2014 | Employment law

The Agency Workers Regulations (AWR), which came into force in October 2011, gives agency workers the right to ‘equal treatment’ with the same pay and other basic working conditions as equivalent permanent staff.

Under these regulations, an agency worker is defined as someone who is “supplied by a temporary work agency to work temporarily for, and under the supervision and direction, of a hirer”. Full details of the Regulations can be found here.

In a case in December 2013 (Moran and Others v Ideal Cleaning Services Ltd and Celanese Acetate Ltd) the Employment Appeal Tribunal (EAT) considered whether the AWR applies to workers on indefinite assignments.

The workers were employed by cleaning agency Ideal, and from day one of their employment they were placed with Celanese on long-term assignments (with their contracts stating the hirer’s place of work as their place of work).

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The workers were made redundant, and claimed that the AWR applied to them and were therefore entitled to the same basic working and employment conditions as if they had been employed by Celanese directly. Ideal and Celanese argued that the Claimants could not be agency workers because they weren’t working ‘temporarily’, as they’d been appointed to work for an indefinite period.

The original Employment Tribunal agreed with Ideal/Celanese that they weren’t agency workers, as defined by the Regulations, because they weren’t engaged on a temporary basis. The claimants appealed but the Employment Appeal Tribunal agreed with the original decision.

The EAT said the word ‘temporary’ can mean something that isn’t permanent, or it can mean something that is short-term – although the two aren’t the same. The EAT said that in the context of the Regulations, the concept of ‘temporary’ means NOT permanent. ‘Permanent’ means indefinite or of an open-ended duration (it doesn’t mean a contract that lasts forever as all contracts of employment are terminable by notice). The EAT said that a temporary assignment is one which will terminate once a particular condition has been satisfied – such as the expiry of a fixed period or the completion of a specific project.

The case may be fact specific in the sense that:

  • The agency workers contracts/job descriptions stated the hirer’s place of work rather than a more vague description: “such locations as specified… which will vary depending on the hirer.”
  • The Judge felt that the worker’s contracts with Ideal were a contract of (permanent) employment, not a temporary contract, as they contained provisions for notice periods, disciplinary and grievance procedures, hours of work, attendance, time-keeping and sickness.
  • If the claims had been brought a lot earlier in their service at Celanese (if this was possible), the assignments would likely have been seen as ‘temporary’.

This is a very significant decision, as it means the AWR doesn’t apply to individuals who are placed with a hirer indefinitely – which lots of agency workers are.

This obviously leaves a gap in the protection that the AWR gives to agency workers. The EAT said that the original European Union legislation must have deliberately created this gap, otherwise they wouldn’t have included the word ‘temporary’ in the Regulations. Incidentally, ‘temporary’ was added at a later stage in the drafting process, but wasn’t there originally.

As this is such a significant decision, there may be an appeal, or legislation may be amended at European Union or UK level – the case was reheard in 2015 at the Court of Appeal.

In the meantime, what does this mean? Will temporary work agencies and hirers now use ‘indefinite’ assignments as a means of preventing agency workers from falling within the scope of the Regulations? (These would need to be genuine though). Perhaps, in time, this may lead to agency workers being declared employees of the agency, meaning they’ll no longer be workers and therefore have no workers rights.

Watch this space!

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.


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