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Ireland: The Labour Court Overturned WRC Decision that an Agency Worker had Continuity of Service for the purpose of an Unfair Dismissal Claim

The complainant was originally employed by an employment agency and assigned to work for the respondent for a period of nearly two years. The complainant was subsequently employed by the respondent but failed his probationary period and was dismissed on 9 January 2020, six months after becoming an employee. The question was whether his previous tenure as an agency worker for the respondent company could be included in the calculation of his continuity of service for the purpose of bringing a claim for unfair dismissal.

In order to bring a claim under the Unfair Dismissals Acts 1977-2015 (the Acts) in Ireland, an employee must have a minimum of 12 months of continuous service. The complainant argued that the period of time spent working as an agency worker on assignment with the respondent company should be reckonable service. The complainant’s argument was centred around Section 13(a) of the Unfair Dismissals (Amendment) Act 1993, which provides that an individual who is carrying on the business of an employment agency for a third party and is acting in the course of that business to do or perform personally any work or service of a third party, shall be deemed to be an employee employed by the third party under a contract of employment in respect of a dismissal occurring.

The WRC found that the complaint was well-founded and ordered re-engagement of the complainant by the respondent. The respondent appealed to the Labour Court where the appeal was upheld.

The Labour Court took the view that while Section 13 was intended to create certainty regarding liability and employment status with respect to dismissal occurring while a person is employed by an employment agency and assigned to a third party, it cannot be interpreted as having a general application for the purpose of calculating service following the termination of the contract with the employment agency. The Court held that it was not intended to operate to create continuity of service for the purpose of an agency worker, who subsequently becomes an employee of the employer to whom they had previously been assigned.