AWR and workers on indefinite and open-ended assignments

Updated February 2021.

In a substantial case in December 2013 (Moran and Others v Ideal Cleaning Services Ltd and Celanese Acetate Ltd) the Employment Appeal Tribunal said that the Agency Workers Regulations do not cover workers who are on indefinite assignments with the end hirer, it only covers Workers who are on ‘temporary’ assignments.

This decision is very important, and may be appealed or may be subjected to updated legislation (from the EU or the UK) – as of 2020 there does not appear to have been an appeal.

The workers were employed by cleaning agency, Ideal and from day one of their employment they were placed with Celanese on long-term assignments (with their contracts stating the hirer’s place of work as their place of work).

The workers were made redundant and claimed that the AWR applied to them and they were therefore entitled to the same basic working and employment conditions as if they had been employed by Celanese directly. Ideal and Celanese argued that the Claimants could not be agency workers because they were not working ‘temporarily’, as they had been appointed to work for an indefinite period (indefinite assignments).

The original Employment Tribunal agreed with Ideal/Celanese that they were not agency workers, as defined by the Regulations, because they were not engaged on a temporary basis. The claimants appealed but the Employment Appeal Tribunal agreed with the original decision.

The EAT said the word ‘temporary’ can mean something that is not permanent, or it can mean something that is short-term – although the two are not the same. The EAT said that in the context of the Regulations, the concept of ‘temporary’ means NOT permanent. ‘Permanent’ means indefinite assignments or of an open-ended duration (it does not mean a contract that lasts forever as all contracts of employment are terminable by notice). The EAT said that a temporary assignment is one which will terminate once a particular condition has been satisfied – such as the expiry of a fixed period or the completion of a specific project.

However, in Angard Staffing Limited v Kocur in July 2020 the Employment Appeal Tribunal (in this long-running case) found that when Mr Kocur was supplied to the Royal Mail (as the end user/hirer) he had the status of agency worker and was therefore entitled to the basic working and employment conditions that permanent Royal Mail staff were entitled to.

Angard Staffing Solutions is an employment agency owned by the Royal Mail which exclusively provides agency workers to Royal Mail when it has increased demand for postal workers. Mr Kocur’s contract with Angard Staffing was open-ended on a zero-hours contract, and he only worked at Royal Mail, repeatedly over a period of 4 years.  The EAT found that each assignment to Royal Mail was defined by a period and shifts with a start and end date.  As such, he was an agency worker as he was not permanently assigned to Royal Mail on an open-ended basis.

This case focused on the supply of the agency worker to the end user/hirer, not on Kocur’s contract with the agency.  The issue was whether the supply of the worker’s services to the end-user (Royal Mail) was temporary; not whether the contract between the agency (Angard) and the agency worker (Kocur) was temporary or permanent.