EAT gives new guidance on scope of Agency Workers Regulations

The Employment Appeal Tribunal has confirmed that workers who were supplied by an agency to work exclusively and extensively for the Royal Mail were protected by the Agency Workers Regulations.

This is third time the EAT has had to consider the definition of an agency worker for the purposes of the Regulations. A worker falls within this definition if they are supplied by a temporary work agency to work “temporarily” for a hirer. But what does temporarily mean in this context?

This latest case could be seen as occupying the middle ground between the facts of the two earlier EAT decisions. In the first, involving the agency Ideal Cleaning Services, a number of workers had been supplied to work continuously for the hirer for lengthy periods of time. Unsurprisingly, the employment tribunal concluded that these workers could not claim the protection of the Regulations, since they were not working “temporarily” for the hirer. This decision was upheld by the EAT.

The second case involved the supply of security guards by Brooknight Guarding. Here, the claimant had been engaged by the agency under a zero-hours contract on the basis that he could be supplied to any site, though in practice he was generally supplied to a single hirer over an 18 month period. For understandable reasons this decision went the other way: both the employment tribunal and the EAT concluded that he had been supplied to work temporarily and could therefore claim the benefit of the Regulations.

In this latest case, although the arrangements had lasted several years, they were made on an assignment to assignment basis, typically for the duration of a single shift. The EAT has concluded that the employment tribunal had been entitled to find that the supply of their labour had been temporary and therefore within the scope of the Regulations.

With these three decisions, we now have a better feel for how tribunals are likely to approach this important definition. However, given the wide variety of arrangements which temporary work agencies and their clients adopt, there will always been some borderline cases. The key lesson from this latest decision is that it is important to focus on the terms on which the workers are supplied, and not solely on the duration of time spent working for a particular hirer.

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