Agency Worker Regulations: the case of Moran v (1) Ideal Cleaning Services (2) Celanese Acetate
The Agency Workers Regulations 2010 (AWR) became effective on 1st October 2011. They applied to those individuals considered as agency workers, and provided for ‘equal treatment’ after a twelve week qualifying period. That equal treatment related to the basic working and employment conditions they would have had had the end user recruited them directly.
In this case, Ideal employed a group of cleaners and placed them with Celanese. The cleaners had been there for between 6 and 25 years before being made redundant in 2012. As for their status, they were employees of Ideal and had written Particulars of Employment that stated the Celanese factory as being their place of work. Periods of service ranged between 6 and 25 years, and the individuals accepted they never envisaged being moved anywhere else by the agency.
The case turned on the definition of an agency worker set out in the AWR. This requires a qualifying individual to have been supplied ‘…to work temporarily for and under the supervision and direction of a hirer…’ The position of Ideal Cleaning Services Ltd was that, bearing in mind the nature of the arrangements here, the definition wasn’t met because they were not supplied ‘temporarily’.
When the matter came before an Employment Tribunal, the Employment Judge found the dictionary definition of temporary to be ‘not permanent’ or ‘lasting only a short time’. On that basis, the assignments in this case were not temporary. It followed on from that that the individuals didn’t qualify under the AWR. The trade union who had supported the claims appealed to the Employment Appeal Tribunal (EAT) but lost. The EAT were less keen on the ‘short term’ part of the definition, but agreed on the fact that ‘temporary’ meant the same as ‘not permanent’. So the EAT dismissed the appeal.
What this means for you
This case suggests that there will be situations where the Agency Worker Regulations, and the various requirements that come with that both for the Agency and an end user, might not be necessary. But it needs to be a situation where there’s every impression of a permanent arrangement. And one that is going to be measured in years rather than months.
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