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Tribunal Delivers Blow to Agency Workers

In a signpost decision, the Employment Appeal Tribunal (EAT) has rejected novel arguments that agency workers who complete a 12-week qualification period become automatically entitled to the same rights as directly employed personnel who work alongside them.

A group of cleaners had, for many years, been assigned by their employer to work at the premises of a single industrial company. In those circumstances, an issue arose as to whether they could properly be viewed as ‘temporary’ workers who were entitled to protection under the Agency Workers Regulations 2010.

An Employment Tribunal (ET) answered that question in the negative on the basis that the length of the assignments – one of the cleaners had worked at the same premises for more than 25 years – indicated that the placements were ‘permanent’, in the sense that they were indefinite.

In dismissing the cleaners’ appeal, the EAT rejected arguments that the ET had erred in law in misinterpreting the word ‘temporary’ in the Regulations as meaning ‘short term’. The cleaners’ assignments were open-ended in duration and thus they could not fall within the definition of temporary agency workers.

In a ‘fundamental submission’, the importance of which went beyond the facts of the particular case, the cleaners’ lawyers also argued that all agency workers should be viewed as entitled to protection under the Regulations provided that they meet a 12-week qualification period.

It was submitted that the underlying ‘social justice’ aims of Directive 2008/104/EC – in particular the principle of equal treatment as between agency workers and permanently employed staff who work alongside them at the same premises – required such an interpretation of the Regulations.

However, in dismissing those arguments, the EAT found that such a reading of the Regulations would rob the word ‘temporary’ of all meaning and effect. In so far as it might be thought that the inclusion of the word in the Directive gave rise to a gap in the protection afforded by the legislation, that lacuna had been deliberately left in place by the legislative organs of the European Union.