This month the Employment Appeal Tribunal concluded that a number of agency workers employed by Ideal Cleaning Services Limited and supplied to Celanese Acetate Limited as cleaners for periods of 6 – 25 years did not have rights under the Agency Workers Regulations 2010.    

To qualify as an “agency worker” under the AWR an individual is required to work “temporarily” for the hirer.  These agency workers all had contracts with Ideal which were of indefinite duration and they had been placed on long-term assignments with Celanese. The EAT stated that a contract cannot be “temporary” if it has an open-ended duration and that in order for a contract to be “temporary” for AWR purposes it would have to be terminable upon some other condition being satisfied, for example the expiry of a fixed period or the completion of a specific project.   

In short then, the EAT appears to be saying that only assignments of a pre-specified duration and/or purpose will be regarded as “temporary” and therefore that only agency workers on such contracts will have AWR rights. In practice, a significant proportion of the agency workforce is supplied by agencies to hirers indefinitely, i.e. until that assignment is terminated with some express period of notice – this, therefore, seems to  leave such workers without AWR protection.   

Surely it cannot be the intention of the EU or the UK legislators to create this gap in equal treatment protection by ignoring arrangements such as these? The EAT considered this but decided that if the legislators had intended this principle of equal treatment to apply to all agency workers, they would not have included the word “temporary” and so this must be a lacuna deliberately left by the legislative organs of the EU.  If only it were possible to assume safely that legislators deliberately intend the consequences of their drafting, however careless the wording and however silly and counter-intuitive the outcome!  

This decision means that those agencies most at risk of AWR claims are those with agency workers on assignments of over 12 weeks but which are not of an indefinite length (e.g. a 9 month maternity cover). It is likely as a result of this decision that we will see agencies amending fixed-term contracts and Assignment Schedules to make clear that the assignment is, actually, on-going indefinitely until terminated upon notice by them or the hirer (albeit that artificially doing so would strictly be a breach of the Conduct Regulations 2003).   

However, given the glaring gap in the legislation, the potential for the decision to be appealed and the particular circumstances of this case, agencies would still be wise to approach this issue with some caution. Query whether the EAT would have reached the same decision had: (a) the agency workers’ contracts not stated the hirer’s place of work, but instead “such locations as specified in the Assignment Schedule, which will vary depending upon the hirer”; (b) one of the agency workers not admitted before the Tribunal that he believed the assignment to be permanent; (c) these claims been brought much earlier, i.e. within 6 months of their commencement, when it would not have been so clear to the Tribunals that the assignments were not “temporary” and/or (d) the periods of service been materially less than the 6 – 25 years applicable here, a level of continuity which would be the pride of most permanent staff too!     

As an aside, even if this argument is appealed and later overturned, it is unlikely the claimants will succeed in this particular case anyway.  Ideal can still put forward a legitimate defence to an AWR claim – that it was providing a managed service.