Employing Agency Workers?

Agency workers do obtain the legal status of an employee. However, over the years the distinction between the two has blurred. Agency workers with at least 12 weeks’ service are now entitled to the same basic employment rights and working conditions as if they had been recruited directly by the end-user. It is valuable protection for an Agency Worker and goes some way towards levelling the playing field between temporary workers and the employees they work alongside.

But the Employment Appeal Tribunal (EAT) has decided in a recent case that workers on “indefinite” or “permanent” assignments are not covered by the Agency Workers Regulations and so do not get employee-equivalent rights. This is a pretty significant shift in the current understanding of the law.

The case involved ten workers who were employed by Ideal. From the very beginning of their employment they were put on an assignment at a company called Celanese. These assignments were long-term (the Claimants had worked there for between six and 25 years). The contracts they worked to were open-ended, specified Celanese’s premises as the place of work and stated that employment was terminable on notice.

When the Claimants were made redundant they argued that they were entitled to better conditions, including higher rates of pay, however, they did not succeed. The EAT held that as the Claimants were working for Celanese on a permanent basis, there was nothing temporary about the arrangement and so they were not covered by the Agency Worker Regulations. The Claimants’ contracts could not be terminated by some condition expiring (for example, the end of a fixed-term or completion of a task) and so the legislation did not apply.

This might not be the final word on the subject. There is always the chance that the Claimants could be knocking on the door of the Court of Appeal.