64. There, the claimant had been employed on fixed-term contracts as a university researcher. French law provided a similar limit on the period over which fixed-term contracts can be renewed as exists in UK law, except that the restriction in France was 6 years rather than four. At the end of 6 years, Mr Huet was engaged on a permanent contract, but as a 'research officer', on inferior terms and conditions. He contended essentially that this was not permitted by the Directive.
65. The ECJ disagreed. In its view, the purpose of the Directive is to promote stable employment for fixed-term workers, but clause 5 of the Framework Agreement does not require that any permanent contract that may be offered following a succession of fixed-term contracts must be on identical terms. Rather, the Member State must ensure that:
'the conversion of fixed-term employment contracts into an employment contract of indefinite duration is not accompanied by material amendments to the clauses of the previous contract in a way that is, overall, unfavourable to the person concerned when the subject-matter of that person’s tasks and the nature of his functions remains unchanged.'
66. It is for the national court to apply this test. What the test permits therefore, is some degree of change in the terms and conditions. And that is only in situations where the tasks and nature of the functions 'remains unchanged', raising therefore the possibility that if the employee is simply given an entirely new job on a permanent basis, all bets are off as to the terms of any such permanent contract.
67. Whether that possibility is open to employers in the UK remains to be seen however, because of the wording of the FTER. It has been argued that the method by which reg.8 of the FTER prohibits unjustified renewals of fixed-term contracts beyond a period of 4 years, is to render the specific term of the contract restricting its duration, null and void. Thus, all other terms of the contract remain the same.
68. While that would certainly appear to be correct in cases where a further fixed-term contract is effectively being 'struck down' in favour of deemed permanent employment, it is much less clear that there is any domestic restriction on possible terms (beyond that set out by the ECJ in Huet) in cases where the employer dutifully engages the employee on fixed-term contracts for no more that the 4 year period specified in the FTER, and then voluntarily offers the employee a permanent contract.
(4) TEMPORARY AGENCY WORKERS
Overview of relevant rights
69. The Agency Workers Regulations 2010 (SI 2010/93) ('AWR') were introduced to implement in domestic law, the requirements of the Temporary Agency Workers Directive (2008/14/EC) ('AWD'). There have only been two significant domestic judgments on their interpretation, which are both considered below.
70. The core rights available to qualifying temporary agency workers are:
(1) Rights to the same basic working and employment conditions (defined as matters relating to working time, rest, leave and pay by reg.6) as a comparable permanent employee (reg.5). An actual comparator is required by reg.5(4), and rights under reg.5 are subject to a qualifying period under reg.7, of working in the same role with the same hirer for 12 continuous weeks. They are also subject to reg.10, which applies different rules where the worker is employed by the agency and is paid by the agency in between assignments.
(2) Rights to be treated no less favourably than a comparable worker in relation to the collective facilities and amenities provided by the hirer (reg.12). The amenities referred to include canteen, child care and transport services. These rights are subject to a defence of objective justification (reg.12(2)).
(3) Rights in relation to “access to employment” (reg.13). Following recent case law (discussed below), the right is limited to a right to be provided with information about any vacant posts with the hirer, in the same way as a comparable worker. Again, an actual comparator is required.
71. Regulation 13(1) in particular provides:
'An agency worker has during an assignment the right to be informed by the hirer of any relevant vacant posts with the hirer, to give the agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.'
72. Regulations 5 and 13 are intended to implement art.5 and 6 of the AWD respectively.
73. Art.5(1) ('The principle of equal treatment') provides:
'The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.'
74. Art.6(1) ('Access to employment, collective facilities and vocational training') provides:
'Temporary agency workers shall be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment. Such information may be provided by a general announcement in a suitable place in the undertaking for which, and under whose supervision, temporary agency workers are engaged.'
[arts.6(4) and 6(5) deal with access to collective facilities and vocational training respectively]
Recent developments: scope of AWR
75. A very significant limitation on the effectiveness of the AWR was articulated last year by the EAT in Moran and ors v Ideal Cleaning Services Ltd and anor  IRLR 172.
76. In that case, the claimants worked as cleaners at Celanese Acetate Ltd, for varying periods of time, ranging from 6 to 25 years. They were employed by Ideal Cleaning Services as agency workers under contracts of indefinite duration, Celanese Acetate being the end user. The claimants brought claims under the Agency Workers Regulations, claiming the right to the same basic working and employment conditions as other workers at Celanese Acetate under reg.5. At first instance, the tribunal relied upon a dictionary definition of the word 'temporary' and decided that because the claimants had been placed at Celanese on an indefinite basis, they were not agency workers because they were not supplied to work 'temporarily' for the purposes of reg.3.
77. In the EAT, Singh J held that the tribunal was entitled to find that the arrangements under which the claimants in this case worked were indefinite in duration 'and therefore permanent'. Since 'the concept of "temporary" in the Regulations and the Directive means not permanent' the claimants in this case could not be 'temporary' agency workers. Singh J further rejected a more fundamental submission that in order to give effect to the purpose of the AWD, the AWR had to be interpreted in such a way as to bring all agency workers who meet the 12-week qualifying period within the scope of the AWR. But that, says Singh J, would 'give no meaning or effect to the word "temporary" at all.'
78. The effect of the EAT’s judgment is stark, but fairly straightforward: as the law stands following Moran, to have any hope of actually benefitting from the protection of the AWR, agency workers will have to be able to show that when they were engaged on a particular assignment, it was for a specified finite duration. There must be a stipulated end to the assignment, otherwise the worker will not be a temporary agency worker: the fact of being engaged via a third party agency will not of itself be enough to bring the worker within the scope of the AWR.
79. This opens up a fairly obvious mechanism for abuse. All any agency or end-user has to do in order to avoid relevant workers coming within the scope of the AWR’s protection, is to offer assignments on an open-ended basis. They can then be terminated without any notice when they have served their purpose.
80. Such practices are likely to be the subject of challenge on the evidence in some cases of course: it may be for instance, that in any given case evidence is available which indicates that while the worker was told that the assignment was open-ended, the end-user or agency always intended for it to last a finite amount of time. Cases of this nature where the agency worker is in possession of such evidence are of course likely to be rare.
81. What is really needed however, is for the issue to be revisited at appellate level or even via legislative amendment, and for the meaning of 'temporary' to be reconsidered. Arguably, the EAT’s approach in Moran has simply replaced difficulty in defining 'temporary' with difficulty in defining 'not permanent'. There ought to be room for some assignments to be regarded as 'temporary' even if there is no formal end date given, by reference to the surrounding circumstances.
Recent developments: access to permanent vacancies
82. While some temporary agency workers are agency workers by choice, for the most part what they really want is a permanent job. Following a judgment of the EAT earlier this summer however, the AWR (and by implication the AWD) do very little (if anything) to assist in that regard.
83. As regards the right under reg.13 'to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker the same opportunity as a comparable worker to find permanent employment with the hirer', there is no right to the 'same opportunity' at all, but rather merely a right to information. The wording of reg.13 is said simply to be stating an assumption that giving the information, will lead to the agency worker having that same opportunity as a comparable worker. That is the effect of the judgment in Coles v Ministry of Defence (31.07.15, UKEAT/0403/14/RN).
84. Mr Coles worked in a particular post as an agency worker for approximately 8 ½ years. The MOD conceded, perhaps surprisingly, that he was a temporary agency worker, so that his status was not in issue.
85. Upon a reorganisation by the respondent, the post occupied by the claimant in this way was to be removed. In its place, would be a permanent 'in house' post for a civil service employee. That post was advertised in such a way as to enable agency workers to see the vacancy, and to submit an application. But any such application would have been entirely futile and not considered on its merits because it was a pre-condition for eligibility that applicants had to be an existing civil service employee (at least until the final stage of the recruitment process – if that ever were to arise – pursuant to which external advertisement of the vacancy would be resorted to). Further, priority was to be given to existing civil service employees who were in the 'redeployment pool'.
86. There was a factual dispute in the tribunal, as to whether the claimant had received a particular email inviting him to 'validate' his 'Civil Service Jobs' account. Such validation would have enabled the claimant to see and respond to the vacancy for what had essentially been his agency position. The tribunal found that he did receive the email, and that for whatever reason he failed to appreciate the need to take further steps.
87. That finding did not matter however, because the tribunal also found that eventually there was a telephone conversation between the claimant and HR prior to the closing date, wherein the claimant was told that he could not be considered for the vacancy due to being an agency worker (unless or until the vacancy were to be advertised externally). It was also found that validation of a Civil Service Jobs account would enable the individual to access a 30 minute online test as to competency for a Band D post, the passing of which was a further obligatory hurdle for a non-civil service candidate like the claimant, or indeed an internal candidate seeking a promotion.
88. After being told that he was not eligible even to be considered, there was no point in the claimant validating his account, submitting an application and taking the Band D test. There was still time to have done so before the closing date. If he had succeeded, such matters would have been questions of a Polkey nature to be determined at a remedy hearing.
89. An existing civil service employee who was in the surplus/redeployment pool (Ms Gingell) was subsequently appointed to the post in question without competition. The claimant’s agency position therefore was terminated and he left.
90. Mr Coles’ case in the tribunal was:
(1) The right in reg.13 and art.6 was more than a right to information: it was a right to have the “same opportunity” as other workers to find permanent employment.
(2) At the very least, it was by no means certain which of those two possible interpretations of art.6 was correct, necessitating a reference to the ECJ bearing in mind the test in the relevant case law for when a reference should be made.
(3) If the right was to more than mere information, the provisions in reg.13 requiring comparison with a “comparable worker” were not compatible with art.6 (again, requiring a reference for determination of that question).
(4) If the “comparable worker” provisions were compatible with art.6, then Ms Gingell was indeed a comparable worker and Mr Coles had not had the “same opportunity” as her on the MoD’s own case.
91. The tribunal agreed that the right was implicitly more than a right merely to information: reg.13/art.6 contained a right to be able to apply for relevant vacancies as well. The tribunal went as far as to find that it would be 'strange' if the position were otherwise.
92. However, that right to apply, did not entail a right for the temporary agency worker to have an application actually considered. The MoD was free to reject any such application out of hand, on the basis of an eligibility criterion requiring applicants to be permanent civil service employees and not agency workers. In this way, the MoD was entitled to give priority to an in house permanent employee who was in the redeployment pool (ie Ms Gingell).
93. In any event the 'comparable worker' provisions in the AWR were not incompatible with the AWD, and Ms Gingell was not a comparable worker. Consequently his claim would have to fail, even if the right was more extensive in nature than the tribunal had found. This was on the basis that (1) Mr Coles was an agency worker; (2) Ms Gingell had already taken the Band D test whereas Mr Coles had not and (3) she was in the redeployment pool.
94. Finally, the tribunal agreed that the post in question was a 'vacant post' (art.6(1) AWD) and a 'relevant vacant post' (reg.13). However, because of the tribunal’s other conclusions this did not have a bearing on the outcome.
95. On appeal to the EAT, Mr Coles ran essentially the same arguments that had been made to the tribunal. The central contention was that there was less than complete certainty as to the correct interpretation of art.6, so that it was not possible to be sure as to what was required when interpreting reg.13 of the domestic regulations. Following R v International Stock Exchange  QB 534 (CA), It is well established that a reference will not be required where the conclusion as to the correct interpretation of the provision of EU law in question is 'inevitable' (550A), or in other words where the domestic court can have 'complete confidence' (551C), per Sir Thomas Bingham MR. Those phrases could not apply here and thus, an ECJ reference was required on both the issue of the nature of the right, and whether the domestic implementation of an actual comparator, was compatible with art.6.
96. Alternatively if it was possible to be sufficiently confident, the interpretation advanced was that there was a right to the 'same opportunity' to find permanent employment as other workers in the undertaking. That meant that being given information about a vacancy that agency workers were specifically prevented from applying for could not be sufficient to meet art.6 requirements.
97. The 'same opportunity' meant, being able at least to compete with Ms Gingell for the post. It was not contended by Mr Coles that there was any right to a guaranteed interview, nor that there was a right to any 'preferential treatment' for Mr Coles over Ms Gingell, nor that the employer should not be allowed to form a redeployment pool of existing employees in the first place.
98. Indeed, it was common ground that any permanent employee in Mr Coles’ position (ie having his or her post deleted) would automatically have entered the redeployment pool, and the argument was simply that he should have been treated as if a member of that pool, so as to enter a competitive selection exercise with Ms Gingell. He might well still have been unsuccessful, but the chances of success were a question for the remedy stage.
99. Dealing with the shorter points first, the EAT gave short shrift to a cross-appeal by the MoD against the tribunal’s conclusion that the post in question was 'vacant post' and/or a 'relevant vacant post'. It was plainly both.
100. Further, the EAT concluded that the issue of whether the actual comparator requirement in reg.13(2) was compatible with art.6, 'might have merited a reference' to the ECJ (para.55), but because this issue did not arise unless the right could be said to be a right to more than simply information – and because the EAT ultimately concluded that the right was no more than that – the issue of the permissibility of the domestic actual comparator provisions could not affect the outcome of the case.
101. Moreover, the EAT agreed that the tribunal had erred in finding that Ms Gingell was not a 'comparable worker' for the purposes of reg.13(2). The issue, following Matthews v Kent & Medway Fire Authority  ICR 365 (HL) (concerning very similar provisions in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulation 2000), was whether Mr Coles and Ms Gingell had been engaged in 'broadly similar work', not whether they had the same or broadly similar qualifications and skills. The MoD had not challenged Mr Coles’ evidence in the tribunal as to the nature of his work compared with that which it was said Ms Gingell had been doing, and none of the grounds relied upon by the tribunal had been relevant to the exercise it had to carry out. Mr Coles and Ms Gingell were comparable workers, but again because of the EAT’s primary conclusion this did not affect the outcome.
102. The primary and fatal conclusion to Mr Coles’ claim however was that the right in art.6 that Member States are required to implement, is simply a right for agency workers to be given information about vacancies. Because Mr Coles had been given the necessary information about the vacancy in question, that was the end of the claim and the other issues in the case became academic.
103. The EAT’s reasoning was primarily that the words 'to give them the same opportunity as other workers in that undertaking to find permanent employment', are there to spell out what the purpose of giving the information is: they build in an assumption that providing the information will in fact give the agency worker the same opportunity to find permanent employment as other workers in the undertaking.
104. The principle of equal treatment is set out in art.5 of the AWD, and is restricted to 'basic working and employment conditions' which are defined by art.3 as relating to working time and pay only. Because the principle of equal treatment had been set out in that limited way separately, it had to follow that the words 'the same opportunity…' in art.6 did not connote any right in respect of access to permanent employment separately or in addition to rights of equal treatment in respect of basic working and employment conditions.
105. Further, support for this view was to be gained by comparing the position with the operation of the FTER and Framework Agreement constituting the parent Directive of the FTER. First, it was noted that art.6 AWD refers to the same opportunity to 'find' permanent employment, whereas clause 6 of the Framework Agreement refers to the opportunity to 'secure' permanent employment. That difference was said to be significant.
106. Moreover, in the Framework Agreement at clause 4, the principle of equal treatment is broader in that it concerns simply 'employment conditions'. This was a sufficiently wide phrase as to encompass requiring fixed-term employees to have the 'same opportunity to secure any permanent position in the establishment', as provided for in reg.3(2)(c) FTER. The fact that the domestic FTER provide a separate right to information about vacancies at reg.3(6), supports the proposition that the correct interpretation of clause 6 of the Framework Agreement (which sets out a right to information about vacancies in virtually identical terms to those used in art.6 of the AWD) is that it is limited to a right to information. Interpreting art.6 of the AWD consistently with the very similar clause 6 of the Framework Agreement, ought then to produce the same result.
107. The point made on behalf of Mr Coles to the effect that interpreting art.6 in this way means that agency workers will often have a pointless right to be provided with information about vacancies that they are ineligible for, could be answered by regarding the point as unrealistic. Because it did not seem likely that employers would in fact reject applicants on grounds only of their agency worker status, that was a further reason for interpreting art.6 as giving rise only to a right of information.
108. Finally, it is evident at various points in the judgment that the EAT regarded the idea of a right to the 'same opportunity' to be considered for permanent vacancies as other workers as difficult to implement, leading to the EAT positing propositions for itself as to guaranteed interviews, and preference for the agency worker, and an 'unspecific right to make an application' (para 55) which it then knocked down. Evidently, considerations as to the workability of the right proposed by Mr Coles weighed on the EAT’s mind in rejecting the appeal.
109. Sadly, for various reasons unconnected with the legal arguments, there is not going to be an appeal to the Court of Appeal in Coles. That is perhaps a shame as there are a number of difficulties with the EAT’s reasoning which would arguably merit further attention, ultimately by the ECJ. If that is ever to happen however, it will be in another case.
110. The fundamental point at issue, is whether it is possible to be certain as to the true meaning of art.6, given the complete absence of ECJ authority on the point, without obtaining the true meaning from the ECJ itself. Of course lucid and reasoned conclusions can be reached either way without the benefit of an ECJ judgment, but the question is whether there is any doubt about what the ECJ’s view would be. It may be that Langstaff J’s interpretation would turn out to be correct of course, but given the perhaps controversial aspects of the judgment it is contended that it was not in fact possible to be as sure as the EAT suggests.
111. Moreover, the absence of any further appeal by Mr Coles means that the compatibility of the actual comparator requirement in the FTER with the terms of art.6 AWD will not be ventilated before the ECJ either, unless another case challenges that point.
112. The problems with the EAT’s reasoning, it is suggested, are as follows:
(1) A restrictive reading of art.6, to the effect that it merely points out helpfully what the benefit is in being provided with information, contains a perverse assumption that such a benefit does actually exist. Self-evidently however it cannot exist in many cases, including Coles itself: information about vacancies that agency workers will not be considered for, is of no assistance to agency workers in finding “permanent employment” at all. Would the EU Parliament and Council really have intended such an assumption to be made?
(2) The idea that the words “to give them the same opportunity…” simply helpfully explain what the purpose of the right to information is, represents an odd drafting technique. If the right is only to be given information, why does the article need to say any more than that there is a right to information?
(3) Equally, if the right is merely to information such that the “same opportunity…” does not connote a right to equal treatment, and given that the second sentence of art.6(1) explains how the right to information may be complied with (by providing a “general announcement in a suitable place” etc), it is difficult to see why it is necessary for the domestic AWR to contain elaborate comparator provisions at all. Could it not be that the second sentence of art.6(1) explains how the simple right to information may be complied with, while the “same opportunity …” signifies something more?
(4) Indeed, where fixed-term employment is concerned, the Government appears to have taken that view, by creating both a right to the same “opportunity to secure any permanent position…” as an aspect of the right to equal treatment (reg.3(2)(c)), and a separate right to information under reg.3(6). The latter right is explicitly created in order to ensure the effectiveness of the former, which makes perfect sense. Is it not possible that the EU Parliament and Council independently had the same thing in mind when drafting art.6 of the AWD in very similar terms to those used in the Framework Agreement? It might very well be that the Government implemented the parent Directive on fixed-term work properly in the FTER in this respect, and that the Parliament and Council did not intend anything different when creating the AWD in strikingly similar terms.
(5) The EAT’s reasoning in comparing and contrasting rights under the Fixed-Term Workers Directive (Framework Agreement), and under the Agency Workers Directive (AWD) is problematic in this regard. Firstly, the EAT relies on the fact that the domestic FTER include an additional separate right only to information at reg.3(6), as a basis for concluding that the EU Parliament and Council could not have intended there to be any more extensive a right than that, in art.6 of the AWD (para.28). It clearly cannot provide any such guidance at all.
(6) Further, the Framework Agreement and the AWD both provide separate rights to equal treatment in clause 4/art.5 and to information about vacancies to provide the “same opportunity…” in clause 6/art.6. The “employment conditions” in clause 4 of the Framework Agreement that are the subject of equal treatment, arguably refers to terms of employment. The range of terms deserving of parity is wider than under art.5 of the AWD (limited to working time and pay), and the EAT relied on this idea in apparently concluding that this explains why the Government created the right to equal treatment in the “opportunity to secure any permanent position” in reg.3(2)(c) FTER, whereas it did not in the AWR.
(7) But terms of employment or employment conditions conceptually do not obviously include a right to be considered equally for permanent vacancies. The use of the broader definition of “employment conditions” in clause 4 of the Framework Agreement (equal treatment), does not therefore explain why domestically the words “opportunity to secure any permanent position…” were used to create a substantive right of equal treatment in the FTER. Those words were plainly derived from clause 6 rather than clause 4 of the Framework Agreement, contrary to the EAT’s own view the words the “same opportunity…” contained in clause 6/art.6 do not form any part of the principle of equal treatment at all.
(8) Clearly there is therefore some basis for believing that art.6 AWD might have created a substantive right of equal treatment in relation to access to vacancies, separately from issues of working time and pay: the Government’s view that in one context the “same opportunity…” gives rise to a right of parity of treatment, but that in another context seemingly it does not, itself indicates at least two different possibilities as to which is the correct position under the parent Directives, which ought to have been resolved by the ECJ.
(9) In any event, even without comparing the rights of fixed-term employees, it is difficult to see why the fact that the principle of equal treatment in the AWD is concerned with working time and pay, should preclude there being a separate right to the “same opportunity” to be considered for permanent vacancies in another provision. The rights of equal access to collective facilities and vocational training are not grouped within art.5 on the principle of equal treatment either.
(10) The EAT also placed emphasis on the word “find” in the AWD, contrasting it with the alternative of “secure” in the Framework Agreement. But the emphasis should arguably have been on the words “permanent employment”: a right merely to be provided with information, only enables the agency worker to “find” information about vacancies. It does not enable him to find permanent employment, particularly if he is not allowed to apply for the vacancy he is informed about. It is by no means clear that there is any particular significance to be attached to the difference between these two words. The ideal party to address that issue, it is contended, would be the ECJ.
(11) The “lack of reality” that the EAT said lay behind the foregoing submission can clearly be challenged beyond the obvious point that it is in fact what happened in this case: the assumption that in practice employers would have no reason to breach such a right is not a basis for concluding that the right does not exist. There is no rational basis for any conventional form of discrimination, but that is not a reason not to prohibit it.
(12) The EAT’s apparent view of the unworkability of the right to the same opportunity, somewhat overlooks the fact that the very same right has in fact been introduced for fixed-term employees in the FTER at reg.3(2)(c) (subject to the defence of objective justification). Indeed, if Mr Coles had been engaged in exactly the same way, for exactly the same reasons, but directly rather than through an intermediary, he would have had exactly the prima facie right contended for, under the FTER.
(13) In any event, the fact that the existence of the right contended for would necessitate adaptation of existing practices in relation to redeployment pools and the like, is not a reason for deciding that the right cannot possibly exist. If the EU has indeed created such a right, it is the existing practices that have to bend to accommodate it, not the other way around. In terms of redundancies and finding suitable alternative employment and the fairness of such dismissals, it would clearly be within the range of reasonable responses not to give a vacancy to an at risk employee without competition, if the law requires the employer to give a relevant agency worker a chance to compete for that vacancy as well.
113. There is a world of difference between a permissible interpretation, and the only possible interpretation. The EAT’s view as to the scope of the right under art.6 AWD is plainly a permissible interpretation, and might even be said by the ECJ ultimately to be the correct interpretation. But it is contended that without the ECJ’s clarification, it cannot truly be said that it is the only possible or unquestionably correct interpretation. As matters stand however, it is the EAT’s interpretation that counts and the right to anything more than information does not exist. Whether that position will be altered in future, only time will tell.
This paper was first written for and presented at the Guildhall Employment Seminar at the M-Shed, Bristol, on 10 September 2015