Temporary Agency Workers Directive Applies to Members of Not-For-Profit Organisation
In the German case of Betriebsrat de Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, which has recently come before the European Court of Justice (ECJ), the Advocate General has considered the scope of the Temporary Agency Workers Directive, which is implemented in the UK by the Agency Workers Regulations 2010.
The Directive applies to "workers with a contract of employment or employment relationship with a temporary-work agency who are assigned to user undertakings to work temporarily under their supervision and direction". A worker is defined as "any person who, in the Member State concerned, is protected as a worker under national employment law".
The case in question concerned the German Red Cross Association of Nurses of Essen, a not-for-profit organisation, whose members (who are qualified nurses) work either within the Red Cross organisation or are seconded by the Red Cross to third party healthcare institutions (where they are subject to the third party’s control).
The nurses are not employees or workers of either the Red Cross or the third party under German law. However, the Red Cross pays them a monthly salary based on the work they perform plus certain expenses. They also receive paid holiday, sick pay and pension contributions.
The Red Cross concluded a secondment agreement with a German clinic to supply nurses. The nurses who were seconded to the clinic received the same pay as nurses employed directly by the clinic, and other terms and conditions that were almost identical.
A dispute arose as to whether the nurses were covered by the German equivalent of the Agency Workers Regulations 2010 and the case was referred to the ECJ.
The Advocate General, who delivers a public opinion on a case prior to it being heard by the ECJ, considered that what links a worker and a temporary-work agency under the Temporary Agency Workers Directive is either “a contract of employment or employment relationship”. The Advocate General did not consider that member states were entitled to restrict the application of the Temporary Agency Workers Directive to only individuals with an employment contract. He therefore found that, even though the nurses in this case did not have an employment contract with the Red Cross, they did have a working relationship with the organisation.
The Advocate General's remarks about the definition of "worker" (which would also apply to other areas of EU law such as the directives on part-time and fixed-term work) are notable. In the UK, the concept of a worker requires there to be a contract of employment or another contract personally to do work. The idea that a person could be a worker where they merely have an “employment relationship” has the potential to significantly change the way in which we consider employment status.
That being said, the Agency Workers Regulations 2010, which have generally proved to be unpopular, may well be amended or even repealed by the government in the future, as a result of Brexit.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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