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Who is protected by the AWRs?
[ch 2: page 57]All temporary agency workers, both full- and part-time, are protected by the AWRs. An agency worker is defined as someone “supplied by a temporary work agency to work temporarily for and under the supervision and direction of the hirer”. This includes most agency workers who are generally referred to as “temps”.
The AWRs also cover agency workers supplied via intermediaries such as umbrella companies and payroll businesses. The genuinely self-employed are excluded, as are individuals who supply their services via a personal service company.
The AWRs met with a fresh setback after a surprise ruling by the EAT that the definition of “agency worker” in the AWRs as someone “supplied by a temporary work agency to work temporarily” excludes any agency worker who is permanently employed by the agency on an employment contract terminable on notice. Here is the case:
A group of agency workers were directly employed for several years by facilities management company Ideal. They always worked for the same end user, alongside its directly employed workforce. Their employment contracts were terminable by Ideal on giving statutory notice. The agency workers claimed equal treatment rights with the directly employed workforce under the AWR, but the EAT ruled that they were not protected by the AWR as their contracts were not “temporary”. The EAT said that the word “temporary” in the AWRs means “not permanent”. It does not mean “short-term”. In other words, a fixed-term contract of any length can be temporary, but an indefinite contract, terminable by notice, cannot.
Moran v Ideal Cleaning Services Limited [2014] UKEAT/0274/13/DM
The work arrangements in the Moran case referred to above reflect standard practice across the facilities management and outsourcing industries, where groups of directly employed agency staff work alongside the hirer’s own employees over extended periods. Large numbers of workers stand to lose out as a result of this ruling. An appeal was to be heard by the Court of Appeal in March 2016, but the parties settled.