Agency workers placed permanently, fall outside the agency workers regulations 2010
The EAT’s judgment in Moran v Ideal Cleaning Services Ltd and Celanese Acetate Ltd has received a lot of attention despite being handed down a mere 4 days ago. Reports may already have reached you but if not, read on.
Judge Singh’s judgment provides that agency workers, placed with a client indefinitely are excluded from the scope of the Agency Workers Regulations 2010.
In this particular case, agency workers argued that the Agency Workers Regulations 2010 applied to them so as to entitle them to the same basic working and employment conditions as if they had been recruited by the client/hirer directly. The workers were employed by the agency for many years and placed to work for the client/hirer.
The Employment Tribunal dismissed their claims and this was upheld by the EAT on the basis that the Regulations only apply to workers supplied by an agency to work temporarily for the end user. Judge Singh held the concept of “temporary” in the Regulations means “not permanent”. A permanent contract is one which is indefinite whereas a temporary contract will be terminable on the expiry of the fixed period or the completion of a specific project. On this occasion, Judge Singh held the arrangement was indefinite and thus the workers had been placed by the agency with the client on a permanent and not temporary basis. They therefore fell outside the scope of the Regulations.
Judge Singh acknowledged that, in practice, there are arrangements whereby significant numbers of workers may be placed by an agency with an end user, working to all intents and purposes on a permanent assignment but employed by the supplier i.e. the agency. Often they will work alongside employees of the hirer but on less attractive terms and conditions and, in particular, lower wages. The view expressed by the EAT here, is that despite the Regulations being intended to provide equality of treatment, the Regulations deliberately and specifically excluded such arrangements.
This probably will not be the last word on the issue and it is suggested that the decision be approached with some caution.
For further information, please contact Jean-Pierre van Zyl, Head of the Employment Team on 0843 224 7925.