The long-term engagement of temporary agency workers is not unusual in many organisations. Temporary agency work is used to create flexibility and to absorb fluctuations in staffing levels. But how “temporary” is such work if the same agency worker has been working for the same hirer for many years? In a recent judgment, the Supreme Court made it clear that temporary agency work must genuinely be of a temporary nature.
In a recent case before the Supreme Court an agency worker had worked almost continuously for nearly thirteen years at the same factory, first at Unilever and later at Upfield. He worked via various temporary employment agencies and successively performed the roles of production worker and dispatch worker. Formally, he was an agency worker. In practice, he performed the same structural work for many years for the same hirer.
When Upfield closed the factory, permanent employees were able to invoke the Social Plan. This did not apply to agency workers. The agency worker argued that, due to the long duration of his assignment and the nature of his duties, he was entitled to the same protection as permanent employees. He relied on the Temporary Agency Work Directive (Uitzendrichtlijn) and the Dutch Allocation of Labour by Intermediaries Act (Waadi). In his view, there was no longer any question of temporary agency work with a temporary character, but of structural work.
The subdistrict court and the court of appeal ruled in favour of Upfield. In their view, the need for a flexible staffing buffer justified the long-term use of temporary agency work. Upfield pointed to fluctuating workload, seasonal influences and the need to cover staffing gaps. Upfield had also taken other agency workers into permanent employment and had offered the agency worker concerned a one‑year contract. The court of appeal considered it relevant that Upfield therefore did not rely exclusively on temporary agency work.
The Supreme Court corrected the approach of the lower courts. According to the Supreme Court, temporary agency work must, by definition, be temporary. This follows from the Temporary Agency Work Directive. That Directive permits prolonged or successive engagement of an agency worker only if the temporary nature of the work is safeguarded and there is an objective justification. A general reliance on flexibility is not sufficient for this purpose. Precisely where an agency worker has been working for the same hirer for many years, almost without interruption, this is a strong indication that the work is structural in nature, according to the Supreme Court.
The Supreme Court further held that long-term temporary agency work with the same hirer is an indication of possible abuse of successive agency contracts. In such a situation, the court must assess whether the agency structure is not being used to circumvent rules on the protection of employees, such as protection against dismissal, continued payment of wages and access to a permanent position with the hirer.
According to the Supreme Court, the court of appeal applied the wrong test. The court of appeal accepted the need for a flexible staffing buffer too readily as an objective justification for thirteen years of temporary agency work. Nor does the fact that other agency workers were taken on as permanent employees and that the agency worker concerned was offered a one‑year contract alter this. In the Supreme Court’s view, the actual deployment of the same agency worker for thirteen years exceeds the boundary of what can still be regarded as temporary. The Supreme Court therefore quashed the judgment and referred the case to the Amsterdam Court of Appeal.
The judgment marks a shift as regards the length of time for which an agency worker may be engaged by the same hirer. The key point is that temporary agency work must be temporary. Temporary agency work is intended to cover peaks, sickness, replacement or clearly defined projects, and not to fill structural positions for many years.
Points of attention for employers that work with agency workers include the duration of the engagement and whether agency workers are deployed for a temporary project, a peak season or, for example, demonstrably fluctuating production. In addition, this judgment is also relevant in the context of Social Plans and collective labour agreement arrangements. Agency workers are still regularly excluded from such schemes. If temporary agency work in fact no longer has a temporary character, an agency worker may argue that he or she is entitled to protection comparable to that of a permanent employee of the hirer. Employers should be aware of this.
If you have any questions about the temporary nature of temporary agency work or would like to discuss this further, please contact Rose Horstman or one of our other Employment Law specialists
Attorney at Law
