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UK – Agency work regulations not applicable to permanent jobs

09 January 2014

The Employment Appeals Tribunal (EAT) upheld a ruling that the Agency Workers Regulations (AWR) are not applicable to permanent contracts, reports lexology.com. The ruling stems from a claim made by individuals, employed by one company but placed in another company: Moran vs. Ideal Cleaning Services Ltd & Celanese Acetate Ltd.

The claimants in the case were employed by Ideal Cleaning Services and placed with Celanese Acetate. They had worked for Celanese Acetate for between six and 25 years until they were made redundant in June 2012.

The EAT upheld the decision of the tribunal that the claimants were not protected as agency workers under the Regulations. The Regulations apply to a situation where individuals are supplied "to work temporarily for and under the supervision and direction of hirers". According to the EAT, the word "temporary" in the Regulations means an arrangement that is not permanent. Here the arrangements were deemed permanent as opposed to temporary, and the individual workers were not covered by the Regulations.

The argument that all agency workers should be protected by the Regulations, regardless of the precise arrangements under which they worked, was rejected. Both the Regulations and the underlying European Directive refer to "temporary" workers.

According to analysis from legal advice firm Cloisters, the EAT considered it very relevant that the first draft of the Agency Workers Directive (AWD) 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”.

According to Cloisters, 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.

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