The rules governing the supply and use of agency workers from one organisation to another (the end-user) are found in the Agency Worker Regulations 2010. Regulation 3 defines an ‘agency worker’ as an individual who is supplied by a ‘temporary work agency to work temporarily for and under the supervision and direction of a hirer’. For clarity, Regulation 4 outlines that a ‘temporary work agency’ is a ‘person engaged in the economic activity… of supplying individuals to work temporarily for and under supervision and direction of hirers’.
The meaning of ‘agency worker’ has been previously considered by the EAT in the case of Moran v Ideal Cleaning Services Limited. Here, the claimants had been employed by one organisation but placed with a separate one. The EAT held that these claimants were not ‘agency workers’ for the purposes of Regulation 3 because they had not been supplied to work temporarily – it had been a permanent arrangement. The EAT clarified that ‘temporary means not permanent’. In other words, if a contract is open-ended in duration, meaning it does not have a definitive ending point, it does not represent that of agency work.
As agency workers are entitled to the same terms and conditions as employees who work directly for the end-user after 12 weeks, false labelling can deny them employment rights and leave organisations liable to claims.
The claimant in this case was employed by one organisation, Angard Staffing Solutions, and seconded by them to Royal Mail. Throughout this period, Angard would assign him exclusively to Royal Mail on a time-limited basis to complete a number of different tasks. This arrangement took place for some time.
The claimant argued that, despite having reached the 12 weeks of service milestone, he was not being provided equal rights to colleagues who were directly employed by Royal Mail, in contrast to agency worker law. This claim eventually reached the employment tribunal, who held that although his rights as an agency worker had been breached, he had been compensated due to his higher rate of pay. The EAT later overturned this ruling, saying his loss of rights could not be compensated in this way.
Following this ruling, both Angard and the Royal Mail brought a separate claim, arguing that the arrangement between them and the claimant called his status as an agency worker into doubt.
The tribunal dismissed the arguments brought forward by Angard and Royal Mail, finding that the claimant was an agency worker for the purposes of Regulations 3 and 4. Although the respondents had argued that the arrangement was potentially indefinite, as it was for the single purpose of performing work for the Royal Mail, the tribunal took issue with this.
They explained that, as the claimant had not known if he was to be called into work from week to week and was supplied to do this work from Angard to Royal Mail, he was an agency worker as outlined in Regulation 3, and Angard was a temporary worker agency as outlined in Regulation 4. The defined periods of work given to the claimant had been, in the tribunal’s words, ‘fatal’ to the argument that the arrangement was not temporary.
Angard and the Royal Mail appealed against this decision to the EAT. The EAT dismissed this appeal, finding that the tribunal had carefully considered this situation and correctly interpreted the law in reaching its conclusion.
The case turned on whether, pursuant to Regulation 3, the claimant had been supplied by an agency to work temporarily for a hirer. The EAT outlined that the tribunal had correctly found that, as each and every assignment had been for a defined period of reference due to being particular shifts, the clamant had been supplied to work temporarily. They had reached this decision both by looking at the claimant’s original contract, and by the relationship in practice.
Although the organisations tried to argue that the claimant had been exclusively supplied to Royal mail via secondment, the EAT rejected this argument. This did not serve to impact upon the fact that the claimant had been regularly and repeatedly supplied by one organisation to another, on a temporary basis, to conduct work. The fact that this was an exclusive arrangement did not serve to breach the requirements of Regulation 3.
This case sends a clear warning of situations when an agency worker situation may arise, even if this was not the intention of the organisation. As always, tribunals will work to assess the truth of the relationship; if this suggests that the status of a claimant is different to what was previously understood, that claimant may have been unfairly denied their legal rights. Secondment situations can be tricky to manage, and organisations should always approach this carefully.