The Employment Appeal Tribunal has considered whether the Agency Workers Regulations 2010 apply to agency workers placed with an end user indefinitely.
In Moran v (1) Ideal Cleaning Services Limited; (2) Celanese Acetate Limited
Mr Moran (among others) was employed by Ideal Cleaning Services Limited as a cleaner but from day one of that employment was placed with Celanese Acetate Limited or its predecessor. The claimants worked at Celanese for between 6 and 25 years, before being made redundant in 2012. Ideal invoiced Celanese for the services and paid the claimants each week for the work they had done. After the Agency Workers Regulations 2010 came into force Mr Moran and others sought to argue that they were agency workers within the meaning of the Agency Workers Regulations 2010 and that they were entitled to the same basic working and employment conditions as if they had been recruited by Celanese Acetate Limited directly.
The Employment Tribunal rejected their claims and this was upheld by the Employment Appeal Tribunal which said that:
• the Regulations only apply to workers supplied by a temporary work agency to work temporarily for the end user
• the concept of “temporary” in the Regulations means not permanent. A permanent contract is one which is open-ended in duration, terminable on proper notice being given, whereas a temporary contract will be terminable upon a condition being satisfied or the expiry of a fixed term
• the arrangements under which Mr Moran and his colleagues worked were indefinite in duration and therefore permanent.
The assignment in this case was open-ended and of no fixed duration so it was clearly “permanent”. An assignment which is for a defined period or for the completion of a specific project would fall within the definition of “temporary” on the EAT’s analysis. However, the decision does leave a grey area in between. What about assignments which are for an indeterminate length, not terminable on any condition being satisfied, but renewed from week to week, to meet the end-user’s requirements? How would they be classified?
Employment businesses that want to ensure that there is no doubt over the status of their workers may attempt to deal with this problem by always ensuring that assignments are limited in time, and that longer term assignments are treated as a series of individual assignments. In practice, however, tribunals are likely to look at the reality of the situation, rather than what the contract says.