Moran v Ideal Cleaning Services Ltd

The word "temporary" in the Agency Workers Regulations 2010 means "not permanent" (open-ended/indefinite), not merely "short-term".

An individual employed on an indefinite contract and placed long-term with a hirer is not an "agency worker" under Regulation 3.

Satisfying the 12-week qualifying period does not, by itself, bring all agency workers within the Regulations if the engagement is not temporary.

The appellants were long-serving employees of a supplier who had been placed to work at the user undertaking for many years.

The Employment Tribunal held, after a pre-hearing review, that they were not "agency workers" within the Agency Workers Regulations 2010 because their placements were permanent rather than temporary. The appellants appealed to the Employment Appeal Tribunal. The EAT considered the meaning of "temporary" in the Regulations and the interaction with Directive 2008/104/EC, and addressed the submission that meeting the 12-week qualifying period should be sufficient to bring an individual within the Regulations.

The central issue was whether the Regulations and Directive require a placement to be not permanent to qualify as a temporary assignment and thus attract protection.

(1) The appeal is dismissed. The Employment Tribunal was entitled to find that the claimants were placed on a permanent and not a temporary basis and therefore fell outside the definition of "agency worker" in Regulation 3. (Disposition: appeal dismissed.) (see paras [21]-[22]; [50]).

(2) The word "temporary" in the Agency Workers Regulations 2010 and in Directive 2008/104/EC means "not permanent" or "indefinite" as opposed to fixed-term of limited duration; it does not simply mean "short-term". The Tribunal correctly preferred that construction. (see paras [20]-[22]; [41]-[42]; [47]).

(3) The submission that any agency worker who satisfies the 12-week qualifying period in Regulation 7 thereby falls within the Regulations is rejected. That construction would render the word "temporary" meaningless and would not better advance the Directive's aims. The legislative history shows the insertion of "temporary" was deliberate. (see paras [23]; [36]-[39]; [46]-[48]).

(4) The Employment Tribunal properly engaged with the factual matrix, including contractual terms and witness evidence, and was entitled to conclude the placements were indefinite in character. Where factual findings support an assessment that placements were permanent, the legal conclusion followed. (see paras [7]-[9]; [13]; [21]-[22]).

(5) Practical outcome: claims dismissed at first instance were upheld by the EAT. Costs/remittal: none materially altering the substantive result is recorded in the judgment. (see para [51]).

• Employment Tribunal (Nottingham) – Preliminary hearing / pre-hearing review decision dated 18 March 2013 finding the claimants were not "agency workers" under the Agency Workers Regulations 2010. (Decision sent 26 March 2013).
• Employment Appeal Tribunal – Appeal heard and judgment handed down 13 December 2013; appeal dismissed, upholding the Tribunal's conclusion that placements were permanent and outside the Regulations.