Today's EAT review concerns the case of Leszek Jedrychowski v DSG Packaging Limited, Naas, Co Kildare, a decision involving a redundancy payment to a former agency worker.

Case Name: Leszek Jedrychowski v DSG Packaging Limited, Naas, Co Kildare

Legislation: Minimum Notice and Terms of Employment Acts 1973-2005, Redundancy Payments Acts 1967-2007

Jurisdictions/SubjectMatter: Redundancy payment for a former agency worker


Facts

The claimant commenced employment with the respondent via a recruitment agency on 21 June 2007. The respondent subsequently employed the claimant directly; he was issued with a P45 from the recruitment agency and signed a contract of employment with the respondent on 22 August 2008. The respondent made the claimant redundant in March 2010 and contended that he was not entitled to a redundancy payment as he did not have the requisite two years employment to qualify.


Determination

The Tribunal declared that the claimant’s employment with the respondent commenced on 21 June 2007 and his claim under the Redundancy Payments Acts succeeded as against the respondent.


Legal Review

The “Employer” as set out in section 2 (1) of the Redundancy Payments Acts 1967-2007 (“The Acts”) is the person with whom the employee has a contract of employment with, subject to the qualification that the person liable to pay the wages of the individual concerned shall be deemed to be the individual’s employer.

This definition is difficult to reconcile with the decision in this case. The employer from 21 June 2007 is the recruitment agency as they paid the employee’s wages. It was only in August 2008 that the claimant signed a contract of employment with the respondent and they began to pay his wages. Therefore by definition, the respondent only became an “employer” in August 2008 and the claimant would not have had the requisite two year employment by March 2010 to qualify for redundancy.

The present case can be distinguished from an unfair dismissals situation.

The Unfair Dismissals Acts 1997-2007 treat the agency worker differently as under those Acts, the employer is the person for whom the employee actually works (i.e. the end-user company) rather than the agency. Compliance with health and safety requirements is also the responsibility of the organisation for whom the agency worker is actually working.

The Acts do not provide for continuity of service between the parties, until an agency worker ceases to be employed by an Agency, and becomes employed by the end user.

There is a lack of legislative clarity on the status of agency workers in Ireland. It is unlikely that the Temporary Agency Workers Directive will be implemented into Irish law before the deadline set by the E.U. (5 December 2011) but, when it is enacted, it may clarify matters.