Moran v Ideal Cleaning Services Ltd

For the purposes of the Agency Workers Regulations 2010, a worker is supplied to work temporarily where the placement is not permanent. “Temporary” does not mean merely short-term. A fixed-term placement may therefore be temporary even if it lasts many months or years, but an open-ended and indefinite placement is permanent.

The 12-week qualifying period does not extend the Regulations to every agency worker. That construction would deprive “temporary” of legal effect and would conflict with the Directive’s deliberately limited framework for temporary agency work.

The appellants had long-term contracts of employment with the first respondent. From the outset, they were placed at the premises of the second respondent, or its predecessor, where they worked under its supervision until their redundancies in 2012.

The Nottingham Employment Tribunal held at a pre-hearing review that they were not agency workers within the Agency Workers Regulations 2010, because they had not been supplied to work temporarily. On appeal, the appellants contended that the Tribunal had treated “temporary” as meaning short-term and that all agency workers satisfying the 12-week qualifying period fell within the Regulations.

The central issue was whether their indefinite placements were temporary placements for the purposes of the Regulations and Directive 2008/104/EC.

1. Appeal dismissed. The Employment Tribunal did not err in law in holding that the appellants fell outside the Agency Workers Regulations 2010.
2. “Temporary” has two possible ordinary senses: not permanent, and short-term. In this statutory context it means not permanent, rather than short-term. A permanent placement is one which is indefinite or open-ended in duration. It is contrasted with a placement which ends on the expiry of a fixed period or completion of a specified project.
3. Read fairly and as a whole, the Employment Tribunal had adopted that correct meaning. Its findings, supported by the evidence, were that the appellants had indefinite contracts and were placed permanently with the second respondent. They were consequently not supplied to work temporarily within Regulation 3, and the first respondent was not a temporary work agency within Regulation 4(1).
4. The appellants’ alternative construction was rejected. The 12-week qualifying period in Regulation 7 did not displace the separate requirement that the worker be supplied temporarily. Treating every agency worker who met that period as protected would give no effect to “temporary”.
5. A purposive interpretation consistent with Directive 2008/104/EC led to the same result. The Directive’s legislative history showed that “temporarily” was deliberately introduced into its scope. Any resulting gap in protection was therefore one deliberately left by the EU legislative organs, not one the court could remove by construction.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Nottingham Employment Tribunal’s determination, dated 18 March 2013 and sent to the parties on 26 March 2013, that the claimants were outside the scope of the Agency Workers Regulations 2010.
• Employment Tribunal (Nottingham): At a pre-hearing review, held that the claimants were not agency workers because they had not been supplied to work temporarily.