AWD252

SECTION 44, WORKPLACE RELATIONS ACT 2015

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042564 (CA-00053834-004)

BACKGROUND:

The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 14 May 2024.  A Labour Court hearing took place on 2 July 2025.  The following is the Decision of the Court:-

DECISION:

This is an appeal by Luke Francis Woods of a decision of an Adjudication Officer Decision (ADJ-00042564, CA-00053834-004 dated 5 April 2024) in relation to a complaint taken under the Protection of Employees (Temporary Agency Work) Act 2012 (“the Act”) alleging a breach of that Act by the Health Service Executive Westmeath IDRS.

The Adjudication Officer found that the complaint was not well founded.

Mr Woods appealed that Decision to the Labour Court on 14 May 2024. A hearing of the Court was conducted in Dublin on 2 July 2025. The Court heard submissions from both parties and sworn evidence from the Complainant. A linked appeal relating to a complaint under the Unfair Dismissals Act, 1977, scheduled for hearing on the same day, was withdrawn by Mr Woods at the hearing.

For ease of reference the parties are referred to as they were at first instance. Hence, Mr Woods is referred to as “the Complainant” and the Health Service Executive Westmeath IDRS is referred to as “the Respondent”.  

Background

The Complainant was engaged by a registered employment agency to provide services as a Staff Nurse to the Respondent (the Hirer). He commenced working as a temporary agency worker for the Respondent in September 2020.

Summary of the Complainant’s position

The Complainant submits that, as an agency worker, he was treated differently from direct employees of the Respondent as he was not provided with the same conditions of employment provided to those employed directly by the Hirer.

The Complainant contends that (i) he did not have access to a Dignity at Work Policy and (ii) the Respondent failed to investigate or follow up a complaint that he made on 16 March 2022 in relation to certain workplace matters.

Summary of the Respondent’s position

The Respondent submits that the Complainant was treated equally to all direct HSE employees in relation to his basic working and employment condition, as is required under the Act.

The Respondent submits that the Complainant had access to an online Dignity at Work Policy which is available to all staff, including agency workers. No complaint was raised by Complainant in relation to dignity at work issues. The Respondent further submits that matters raised by the Complainant about an incident that arose on 13 March 2022 were investigated and resolved on 17 March 2022.

The Relevant Law  

Basic working and employment conditions of agency workers.

6.— (1) Subject to any collective agreement for the time being standing approved under section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

The meaning to be ascribed to the term ‘basic working and employment conditions’ is set out at Section 2 of the Act as follows: -

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hire, and that relate to-

(a) pay,

(b) working time,

(c) rest periods,

(d) rest breaks during the working day,

(e) night work,

(f) overtime,

(g) annual leave, or

(h) public holidays.

Section 24 of the Act probits penalisation of a threat of penalisation by the hirer as follows: -

24.— (1) A hirer shall not penalise or threaten penalisation of an agency worker for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act has been contravened,

(d) giving evidence in any proceedings under this Act, or

(e) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

F5[(1A) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.]

(2) If a penalisation of an agency worker, in contravention of subsection (1), constitutes a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the agency worker in respect of that penalisation both under Schedule 2 and under those Acts.

(3) In this section “penalisation” means any act or omission by a hirer or a person acting on behalf of a hirer that affects an agency worker to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension or dismissal (within the meaning of the Unfair Dismissals Acts 1977 to 2007), or the threat of suspension or such dismissal,

(b) loss of opportunity to apply for a position of employment with the hirer,

(c) transfer of duties, change of location of place of work or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

Deliberation & Findings

The Act provides protection to agency workers such that they are entitled to the same ‘basic working and employment conditions’ as those employees directly employed by the Hirer. It also provides protection against penalisation or a threat of penalisation where agency workers invoke their rights under the Act.

In this case, the Complainant does not submit that he was penalised or threatened with penalisation by the Respondent for invoking his rights under the Act.

The Complainant contends that he was not provided with the same conditions of employment provided to those employed directly by the Respondent, as he did not have access to a Dignity at Work Policy and, in his view, a workplace complaint made by him was not properly investigated.

The meaning ascribed to the term ‘basic working and employment conditions’ is set out at Section 2 of the Act. The Court heard that there is no collective agreement in place, approved under section 8 of the Act, which provides for different working and employment conditions applicable to the Complainant.

An entitlement to access to a Dignity at Work Policy is not one of the ‘basic working and employment conditions’ of employment as defined by Section 2 of the Act. Accordingly, the Court must find that such a provision is not envisaged by the scope of the Act.

Similarly, the Courts finds that the term ‘basic working and employment conditions’ does not include any statutory entitlements regarding how workplace matters are investigated by the Hirer. Accordingly, the Court must find that such a provision is not envisaged by the scope of the Act.

Considering the above findings, the Court can only conclude that the within claim is misconceived in law and therefore cannot succeed.

Decision

The complaint is not well founded.

The Decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
CC	______________________
7 July 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.