Agency worker with open-ended contract could still rely on the protection of the Agency Worker Regulations
The Employment Appeal Tribunal (EAT) has held in Angard Staffing Solutions Ltd and anor v Kocur and ors that a worker who had an open-ended contract with an agency was nonetheless supplied to work temporarily for the end-user and satisfied the definition of "agency worker".
Angard Staffing Solutions Ltd (ASS Ltd) is a company in the Royal Mail group with Royal Mail as its only client. It supplied employees to Royal Mail to supplement Royal Mail's permanent employees. The claimant was an agency worker who had been employed by ASS Ltd since January 2015 and had been supplied to work for Royal Mail for the entirety of his employment. He sought to bring claims under the Agency Workers Regulations 2010.
The tribunal held that the claimant was an agency worker. ASS Ltd sought to argue that the claimant was supplied to work for Royal Mail indefinitely as he was employed for the single purpose of working for Royal Mail. The tribunal held that although his contract with ASS Ltd was permanent the question to ask was whether the supply of his services to Royal Mail was temporary and concluded that it was as it was carried out under a series of engagements, each with an express end-date. There were also periods of two to three weeks over the course of the four years where the claimant did not carry out work for Royal Mail. The EAT agreed with the tribunal, holding that the focus should be on the basis on which the worker is supplied to work on each occasion. It concluded that the contract of employment between the worker and the agency will form part of the evidential and factual matrix upon which the tribunal may draw, but the question is not necessarily determinative. The question to ask will be on what basis was the supply of services made, and the contractual documentation and communications between the agency and the worker should all be considered for the evidential contribution they make to the determination of the factual question.
Take note: Where agency workers work on a long-term basis for a single client or end-user under a flexible arrangement (as was the case in Kocur where the claimant signed up to a series of different assignments, each with an express end date) then it is likely that they will be covered by the Agency Workers Regulations 2010. This is unlikely to be the case where they have an indefinite and open-ended assignment with a single client and where their arrangement is terminable on notice.