Angard Staffing Solutions Ltd v Kocur

The concept of "temporarily" in Regulation 3(1)(a) of the Agency Workers Regulations 2010 means “not permanent”, and so the inquiry properly focuses on the basis on which each supply or assignment is made, not merely on the open-ended nature of the worker’s contract with the agency. The contractual framework is evidence of the parties' intentions but is not determinative. Repeated, exclusive or long-standing supplies to a single hirer can still be temporary if each assignment is time-limited. The Tribunal’s fact-finding on the finite duration of each engagement decides the issue of agency-worker status.

This appeal arose from an Employment Tribunal Preliminary Hearing which held that the lead claimant was an "agency worker" under Regulation 3 of the Agency Workers Regulations 2010. The appellants, Angard and Royal Mail, challenged the Tribunal's finding that the claimant was "supplied" to work "temporarily" for the hirer. The appeal required construction of "temporarily" in light of prior EAT authorities, principally [2014] ICR 442 (Moran) and [2018] UKEAT/0309/17 (Brooknight). The EAT heard cross-arguments about whether the Tribunal should have struck out the defence as an abuse of process under the rule in (1843) 3 Hare 100. The central question was whether each supply/assignment was time-limited so as to be temporary.

1. Disposition: The appeal and the cross-appeal were dismissed. The Employment Tribunal’s decision that the lead claimant was an "agency worker" and that Angard was a "temporary work agency" stands.
2. Focus of the legal test: Regulation 3(1)(a) requires an enquiry into the basis on which the worker is supplied to the hirer on each occasion. "Supplied" denotes the act of designating or sending the worker to undertake a particular assignment. The Tribunal must decide whether that supply is made on a basis that is indefinite or on a basis that is to cease at a fixed time or on completion of a task. The Tribunal should apply the guidance in [2014] ICR 442 and [2018] UKEAT/0309/17 when carrying out that exercise (see paras [32]–[39]; [46]).
3. Meaning of "temporary": "Temporary" means not permanent. Work is temporary where it is terminable by reference to some event other than ordinary notice (for example, expiry of a fixed period or completion of a specific task). A contract of employment with the agency may be indefinite, but that does not prevent a supply under it being temporary (see paras [34]–[38]).
4. Role of contractual terms: Contractual documentation and initial communications form part of the evidential matrix. They are relevant and often informative about the basis of supply, but they are not automatically determinative. The Tribunal must assess what in fact happened in practice and the particular terms of each assignment (see paras [25]–[27]; [37]).
5. Exclusivity and single hirer: Supplying workers exclusively to a single hirer does not in itself prevent supplies being temporary. The Directive and Regulations were not intended to be confined to agencies with multiple hirers, and the presence of a single hirer is not decisive (see paras [41]–[43]).
6. Application to the facts: On unchallenged findings the Tribunal correctly concluded that each engagement was time-limited. Each assignment was for a defined shift or period and so was temporary in the sense required by Regulation 3(1)(a). The Tribunal therefore correctly found agency-worker status (see paras [37]–[40]).
7. Abuse of process / "Henderson v Henderson" point: The Tribunal was not under a general duty to raise and adjudicate a potential (1843) 3 Hare 100 point of its own motion where no party had made it a live issue at the preliminary hearing. Given that the point had not been identified and argued as live, failure proactively to decide it was not an error of law (see paras in Cross-Appeal discussion).
8. Orders: Appeal dismissed; cross-appeal dismissed. The Tribunal’s judgment is upheld.

• Employment Appeal Tribunal: Appeal dismissed; judgment delivered 10 July 2020 ([2020] UKEAT 0050_20_1007).
• Employment Tribunal (Preliminary Hearing): Reserved judgment of Employment Judge D N Jones (PH held 15 August 2019) — Tribunal found claimant to be an agency worker and agency to be a temporary work agency. (lower tribunal decision upheld)