Workers Permanently Assigned to Client Not Protected by Agency Worker Regulations

Employees of a cleaning company assigned permanently to a client were not agency workers protected by the Agency Worker Regulations 2010. 

In Moran v Ideal Cleaning Services Ltd, the claimants were employed by Ideal as cleaners. From the start of their employment they were placed with one of Ideal’s clients, Celanese, and their statement of written particulars of employment stated that their place of work was the Celanese factory. They worked there for between six and 25 years, before being made redundant in 2012. 

The claimants claimed that they were agency workers under the Agency Worker Regulations 2010 (“AWR”). Their claims were resisted on the basis that they were not working temporarily for and under the supervision and direction of the hirer and did not therefore fall within the statutory definition of an agency worker. 

The EAT upheld the tribunal decision, finding that the workers were not agency workers. The arrangements under which the claimants worked for Celanese were indefinite in duration, and therefore permanent and not temporary. It rejected the claimants’ argument that the AWR should be interpreted in line with the Directive so as to provide protection to those permanently assigned to an end-user client. The Directive expressly refers to workers temporarily assigned to a user undertaking and there was therefore nothing to suggest that the EU had intended the protection to be extended to agency workers assigned on a permanent basis.

The decision in this case leaves a gap in the protection provided by the AWR. Workers assigned to an end-user client on a permanent basis will not be entitled to the same basic working and employment conditions that they would have been entitled to had they been recruited directly by the hirer. Nor will they be entitled to any other rights provided by the AWR, such as the right to access the hirer’s collective facilities and information abut job vacancies. The facts in this case were reasonably clear cut and there was little doubt that the assignments were permanent. Other cases may not be so clear. If, for example, a worker is assigned to a client and the assignment is renewed on a weekly basis for many years, will their assignment be considered temporary or permanent?

The claimants are seeking leave to appeal to the Court of Appeal so this may not be the last word on this issue.