Moran & Ors v Ideal Cleaning Services Ltd & Anor

For the purposes of the Agency Workers Regulations 2010, an individual must be supplied to work temporarily. In this context, “temporary” means not permanent, rather than necessarily short-term. A placement is permanent where it is indefinite or open-ended in duration, although the employment contract remains terminable on notice.

The 12-week qualifying period does not bring every agency worker within the Regulations. That construction would deprive “temporarily” of legal effect and would conflict with the Directive’s deliberately limited scheme. A worker permanently placed with a hirer falls outside the statutory definition.

The appellants had been employed for many years by the first respondent, a cleaning-services company. From the outset of their employment, they were placed to work at the second respondent’s premises, under its supervision and direction. Their employment ended in redundancy in late 2012.

They claimed equal-treatment protection under the Agency Workers Regulations 2010. At a pre-hearing review, the Employment Tribunal at Nottingham held that they were not agency workers because their placements were permanent rather than temporary. The appellants appealed, contending that “temporary” meant short-term and, alternatively, that all agency workers satisfying the 12-week qualifying period were protected.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the appellants were not supplied to the hirer to work temporarily and therefore were not agency workers within Regulation 3 of the Agency Workers Regulations 2010.

2. “Temporary” has two possible ordinary senses: not permanent, or short-lived. In the Regulations and Directive it means not permanent. A permanent placement is one that is indefinite or open-ended in duration. It does not mean a contract that can never end, since ordinary employment contracts may be terminated on notice. A fixed-term contract, or one ending on completion of a project, may be temporary even if it lasts a substantial time.

3. Read fairly as a whole, the Tribunal had not treated “temporary” as meaning short-term. Its conclusion rested on the indefinite and permanent character of the appellants’ arrangements. The finding was supported by the evidence, including the evidence that the placement was, in reality, permanent.

4. The alternative construction, under which every agency worker who completed the 12-week qualifying period obtained protection, was rejected. It would give no legal effect to “temporary” in Regulations 3 and 4. A purposive reading of the Directive supported, rather than undermined, that conclusion: the legislative history showed that “temporarily” was deliberately added to the scheme. Any resulting gap in protection was one deliberately left by the EU legislature.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s conclusion that the claimants were outside the Agency Workers Regulations 2010 was upheld.
• Employment Tribunal at Nottingham: at a pre-hearing review, Employment Judge Britton held on 18 March 2013, sent to the parties on 26 March 2013, that the claims failed because the claimants were not agency workers.