The Appellants were employed for 6-25 years by the first Respondent but placed by them to work as agency workers at the premises, and under the supervision, of the second Respondent or its predecessor. The Appellants sought to argue that they qualified for protection under the Agency Workers Regulations 2010 and should be paid the same as equivalent permanent workers at Celanese Acetate Ltd.

The workers' contracts were open-ended and they were all long-term placements. The EAT has decided that a contract cannot be "temporary" if it has an open-ended duration period. To be covered by the legislation a temporary contract must be terminable by some other condition expiring e.g. the ending of a fixed term or completion of a specific task. In this case the Appellants could not compare themselves with permanent workers at the end user's organisation because their contracts could not be deemed to be temporary.

The original tribunal and the EAT recognised the gap in the legislation that effectively denies rights to agency workers due to the drafting of their contracts but felt that it is for parliament to address that lacuna. If parliament had intended all agency workers to have protection it could have removed the word "temporary". 

Subject to any appeal or a revision of legislation, agency workers with open-ended contracts that are placed in organisations will not be covered by the legislation (in GB at least - this case is persuasive only in NI) and only those placed in fixed term or specific purpose assignments will be able to argue the right to equal pay after 12 weeks' placement.

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