EDA1823

This is an appeal brought on behalf of Tesco Ireland (‘the Respondent’) against a decision of an Adjudication Officer under the Employment Equality Act 1998 (‘the 1998 Act’) bearing reference number ADJ-00000581 and dated 19 May 2016. The Respondent’s Notice of Appeal was received by the Court on 22 June 2016. The Court heard the appeal over two days: on 11 May 2017 in Limerick and on 21 March 2018 in Dublin.

The Adjudication Officer upheld Mr Pawlisiak’s (‘the Complainant’) complaints that the Respondent had failed to make reasonable accommodation for his disability and had victimised him within the meaning of the 1998 Act. She ordered compensation of €16,000.00 in compensation for each of the two grounds of complaint (i.e. €32,000.00 in total) and also directed the Respondent to conduct a review of its employment policies and procedures to ensure their compliance with the 1998 Act.

The Adjudication Officer’s decision at first instance was predicated in large measure on her finding that the Complainant’s then employer – Noonan Services Group Limited – is an employment agency within the meaning of section 2 of the 1998 Act. The central plank of the Respondent’s appeal is that, as a matter of law and of statutory interpretation, the Adjudication Officer’s finding in that regard was incorrect.

The Facts

The relevant factual background to the within appeal can be set out very briefly. It is not disputed that the Complainant suffers from a knee complaint. He was, at all material times, a security guard employed at the Respondent’s store in Coonagh, Limerick. He was originally employed by G4S until that company lost the contract in 2014 to provide security services on a national basis at the Respondent’s stores. Noonan Services Group Limited succeeded G4S as the Respondent’s chosen provider of security services and retained the contract until 2017, at which point OCS was the successful tenderer. A transfer of undertaking within the meaning of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 occurred as between G4S and Noonan Services Group Limited in 2014 and again as between the latter company and OCS in 2017.

The Parties’ Submissions

Ms Colette Hannon BL, for the Complainant, submits that Noonan Services Group Limited is an employment agency within the meaning of section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 (‘the 2012 Act’) and that the Complainant was assigned by it as an agency worker – also within the meaning of the 2012 Act – to work for, and under the supervision of, the Respondent. The Respondent, therefore, she submits, is the hirer for the purposes of the 2012 Act. She further submits, in the alternative, that an implied contract of employment came into being between the Respondent and the Complainant arising from the level of control exercised by the former over the latter on a day-to-day basis. In support of this submission, Ms Hannon makes reference to the determination of this Court inDiageo Global Supply v Mary Rooney[2004] ELR 133, the judgment of the High Court inBrightwater Selection (Ireland) Limited v Minister for Social and Family Affairs[2011] IEHC 510 and the judgment of the UK Court of Appeal inDacas v Brook Street Bureau (UK) Ltd[2004] EWCA Civ 217.

The Respondent submits that at all material times it engaged Noonan Group Services Limited as a provider of managed services and not as a provider of agency personnel and that, in any event, the latter company is not an employment agency within the meaning of the Employment Agency Act 1971 (‘the 1971 Act’) and does not hold a licence under that Act. It further submits that Noonan Group Services Limited is not a “provider of agency work” within the meaning of section 2(5) of the Act. Finally, the Respondent, in addressing the Complainant’s alternative submission in relation to the existence of an alleged implied contract of employment between it and the Complainant, submits – having regard to the caselaw referred to Ms Hannon – that any such implied contract is predicated on there being an agency-hirer relationship in place between the Respondent and Noonan Services Group Limited, which is denied.

The Law

Section 2(3)(c) of the 1998 Act provides:

“[For the purposes of this Act] …(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer”.

It is common case that the Complainant was paid at all material times by Noonan Group Services Limited. Even if the Court were to accept – which it does not – that that company is an employment agency within the meaning of the 1971 Act and/or within the meaning of the 1998 Act, then it and not the Respondent in the within appeal would be deemed to be his employer for the purposes of any complaint under the 1998 Act.

Section 1(2) of the 1971 Act provides:

“(2) For the purposes of this Act, the business of an employment agency means the business of seeking, whether for reward or otherwise, on behalf of others, persons who will give or accept employment, and includes the obtaining or supplying for reward of persons who will accept employment from or render services to others.”

Discussion and Decision

The Court is very familiar with the distinction between a provider of agency personnel and a provider of managed services. Neither the 1971 Act nor the 2012 Act applies to a business the operations of which come within the latter category. Both Acts apply exclusively to the former type of business. Noonan Services Group Limited is of the latter type. In the context of the factual background to this case, Noonan Services Group Limited was contracted at all material times to provide security services at the Respondent’s stores throughout the country. It did not supply the Respondent with personnel to work under the latter’s supervision and direction. It follows, therefore, that the Complainant’s claims against the Respondent under the 1998 Act are not well-founded as the Respondent was at no stage his employer for the purposes of that Act.

The appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
03 April 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.