Employment Appeal Tribunal
When determining under the Agency Workers Regulations 2010 and Directive 2008/104 whether a worker had been supplied to work temporarily for a hirer, the concept of "temporary" meant "not permanent" rather than "short-term".
The appellants (M) appealed against an employment tribunal's decision that they did not fall within the meaning of "agency workers" in the Agency Workers Regulations 2010.
M had been employed as cleaners by the first respondent (R1) for many years. From the start of their employment they were placed with the second respondent (R2). R1 invoiced R2 for M's services, and R1 paid M's wages. After the 2010 Regulations came into force, M claimed that they were agency workers and were entitled to equal treatment with R2's permanent employees. Regulation 3 defined "agency worker" to mean an individual who "(a) is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and (b) has a contract with a temporary work agency which is (i) a contract of employment with the agency or (ii) any other contract to perform work and services personally for the agency". The employment judge found that M were not agency workers because they were not supplied by R1 to work for R2 temporarily.
M submitted that (1) the judge had erred by interpreting "temporary" to mean "short-term"; (2) subject to the 12-week qualification period in reg.7, all agency workers had to fall within the protection of the Regulations in order to give effect to the purpose of Directive 2008/104.
HELD: (1) It was not entirely clear what interpretation the judge gave to the word "temporary" in the Regulations. The word "temporary" could mean something that was not permanent or it could mean something that was short-term. The two were not necessarily the same. Read as a whole, the judge did not fall into the error of interpreting "temporary" to mean "short term". What he said was that the arrangements under which M worked were indefinite in duration and therefore permanent (see paras 41-42 of judgment). (2) The legislative history of the drafting of the Directive was important. The original draft Directive envisaged that it would apply to "the contract of employment or employment relationship between a temporary agency, which is the employer, and the worker, who was posted to a user-undertaking to work under its supervision". The concept used was one of "posting". However, the definition was altered so that the concept of posting was replaced with the concept of "assignment" and the word "temporarily" was introduced. To adopt M's second submission would give no meaning or effect to the word "temporary" at all. Even if the original proposal for the Directive would have had the effect for which M contended, the amendment introducing the concept of "temporary" into the scheme of the Directive strongly suggested that it was intended to have legal significance and should be given effect. In so far as that left a lacuna in the scope of protection of the legislation, that was deliberately left by the legislative organs of the EU. The concept of "temporary" in the Regulations and the Directive meant "not permanent". On the facts found by the employment judge, M were placed with R2 on a permanent, and not a temporary, basis. They therefore fell outside the scope of the Regulations (paras 36-39, 46-50).
Appeal dismissed – Permission has been granted for appeal to the Court of Appeal.
 IRLR 172
EMPLOYMENT,EUROPEAN UNION,AGENCY WORKERS,EMPLOYMENT STATUS,EQUAL TREATMENT,TEMPORARY WORKERS,IAN SCOTT
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