Complainant

Respondent

Parties

Niamh  Farnham

PSC Biotech Limited

Representatives

 Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00067780-001

30/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00067780-002

30/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067780-003

30/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00069663-001

01/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00069663-002

01/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00069663-003

01/03/2025

The complainant was employed by the respondent as an agency worker and was placed to work on a 'hirer' site. She was a full time employee of the respondent.

The parties were invited to make submissions after the hearing which contributed to the delay in issuing this Decision.

Complaints CA-00069663-001, 002 and 003 were withdrawn at the hearing as they duplicated those under CA-00067880.

Complaint CA-00067780-001 Agency Work

The complainant was employed by PSC Biotech Limited from August 14th,  2023 until  August 30th, 2024, as an agency worker. During the course of her employment, she was placed to work on a 'hirer' site, working on tasks defined by and under the direct supervision of the hirer.

She submits that any time without an active placement with a hirer organisation would have been unpaid. Her salary was €52,000 initially, increasing to €53,664 on  May 1st, 2024. Her job title was 'Laboratory Business Specialist'.

In August, a colleague, who was hired directly by the employer was being offered a role in the Lab Systems team where she was employed. He had previously been working in this team already for about ayearonaplacementprogrammetoallowemployeestogainexperienceindifferent roles.

Thisofferrepresentedapermanent positioninthisteam,althoughhewasalreadyanemployeeofthe respondent prior to this date. The position offered to the colleague was at 'Associate Specialist' level. This colleague showed her an email sent to him, summarising his offer within the team which contained anonymised data points representing the salaries paid to each employee hired directly with the hirer, in the job grade associated with the 'AssociateSpecialist'position.

This meant that there was only one employee at this job grade who had a basic salary lower than her. All other employees in this position had a substantially greater salary, even though her position was one grade higher. It is notable that the hirer operates a 'pay for performance' model.

August 30th, 2024, was the final day of her employment with PSC Biotech Limited.  Her exit interview on  September 20th, 2024, consisted of a MS Teams call during which she raised the pay disparity. The respondent insisted that  it was entitled to pay her at a rate independent of what the hirer organisation pays their direct employees.

She was promised a written response and on  September 28th, 2024, she sent an email detailing the pay disparity, making reference to the employee handbook and the Protection of Employees (Temporary Agency Work) Act, 2012 to supplement the points raised.

14 October 2024, There were several follow up emails sent by the respondent between these dates, requesting a response) In one letter, the following statements were made:

'Your continued accusations of mis payment in your role served, despite having signed the conditions of your employment contract, are denied and completely refuted. Furthermore, any claims regarding gender pay disparity are unfounded. We take these accusations very seriously and will not tolerate such allegations.

Additionally, please note that we cannot discuss the salaried of other employees of a PSC client nor a PSC employee, as doing so is unprofessional and serves no business interest for PSC Biotech. As your employer, we can only engage with you regarding your specific terms, conditions, and the salary you accepted and signed in full.'

On October 14th,  she made a Data Subject Access Request, requesting all data PSC Biotech Limited holds on her, specifically regarding data used in determination of her salary This was not provided, and she was told all future communications would have to be ‘formal’.

On November 12th data was provided which consisted of a total of forty attachments, but a very significant number of items were withheld, but on following up was told there was nothing further.

She was told that the request was processed 'with legislation in mind'.

On November 22nd, 2024, she was told why some of the data had not been disclosed, citing reasons like she 'didn't think it was relevant', that she hadn't replied to an email, payslips weren't requested from Payroll because they were sent to her monthly, and emails had been sent to her previously.

Over the duration of her employment, PSC Biotech Limited failed to pay her equal to what she would have been paidhadshebeenpaiddirectlybythehirerorganisation.

Asanagencyworkerwithentitlementtopayparitydueto the particulars of her contract of employment, this amounts to a failure to provide the same basic working and employment conditionstowhichacomparable workerhireddirectlybythehirerwouldbeentitled.

PSC Biotech Limited have repeatedly refuted the existence of this protection, and more broadly the Protection of Employees (Temporary Agency Work) Act, 2012 during all attempts to resolve the issue directly with them.

Complaint CA-00067780-002 OWT (Hours of work)  Annual Leave on termination

As per the contract of employment, her annual leave entitlement was 25 days pro rata. The respondent’s policy did not allow for carry-over of annual leave days between calendar years. Therefore the total annual leave accrued for 2024 until her final date of employment was 16.6 days. On her final date of employment, there was an outstanding balance of 4.7 days of annual leave owed to her. Her salary at the time was €53,664, therefore one week of pay equals €1032 (€970.08 for 4.7 days).

At her exit interview on September 20th, 2024, she was told that she only had 'just over 2 days' of annual leave balance owed to her. The reason for the miscalculation was becauseAugust 1st and 2nd2024had been classifiedasannualleave,eventhoughsheworkedonthesedays.

There was no provision in the contract of employment to allow for a deduction due to an act of omission by an employee, and she was not informed in advance of the particulars of this deduction. The respondent insisted that they were entitled to make this deduction regardless, however it was agreed that she would be paid for all 4.7 days owed by the end of the call.

On September  27th she got  a pay slip containing payment for annual leave balance. The total sum of money paid to her in this pay slip for the outstanding 4.7 days of annual leave was €691.02. This is €279.06 less that what is owed for the unused annual leave (€970.08).

She raised this on September 28th, 2024, and supported it with detailed calculations.

The respondent detailed its calculation methodology as follows: (Annual Salary/365 days) by 4.7 days. this is contrary to the guidance for determination of pay for holidays set out in the Organisation of Working Time Act, 1997. It is notable that previously when annual leave was taken during a pay period, there was no reduction in wages compared to a month where no leave was taken; such implies that this is not the usual way that annual leave is calculated by PSC Biotech Limited.

On October 14th, 2024, in response to a letter from the respondent she requested a copy of the policy relating to the calculation of annual leave pay in this manner and raised a Data Subject Access Request. Correspondence continued for some weeks (as set out above).

Details of Breach:

The respondent has failed to pay the entire sum owed for accrued annual leave due to an incorrect calculation methodology for the determination of pay for holidays set out in Section 20 of the Organisation of Working Time Act, 1997, which states:

The normal weekly rate of an employee’s pay, for the purposes of this section, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Given the normal weekly rate of pay was €1032. The partial week owed (4.7 days) should have been paid proportionately to a sum of €970.08, rather than €691.02.

Complaint CA-00067780-003 Annual Leave

PSC Biotech Limited have failed to pay the entire sum owed for accrued annual leave due to a failure to use the correct calculation methodology for the determination of pay for holidays which constitutes an unlawful deduction in wages under the Payment of Wages Act, 1991.

The respondent did not allow for carry-over of annual leave days between calendar years. Therefore the total annual leave accrued for 2024 until her final date of employment was 16.6 days. On her final date of employment, there was an outstanding balance of 4.7 days of annual leave owed to her. Her salary at the time was €53,664, therefore one week of pay equals €1032 (€970.08 for 4.7 days).

 The total sum of money paid to her in this pay slip for the outstanding 4.7 days of annual leave was €691.02. This is €279.06 less that what is owed for the unused annual leave (€970.08).

Given the normal weekly rate of pay was €1032. The partial week owed (4.7 days) should have been paid proportionately to a sum of €970.08, rather than €691.02.

The respondent is a company providing services to life science companies. The complainant commenced employment on August 14th, 2023, as a laboratory Business Specialist,  and a copy of her contract of employment was submitted.  

In relation to the complaint CA-00067780-001 the complainant seeks adjudication under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012. This complaint is misguided and should be deemed to be unfounded.

It is clear from the complainant’s contract of employment that at all times in the course of her employment with the respondent the complainant was a full time permanent employee and as such she is not covered by this Act.

In this regard the complainant respectfully refers to Meenan, Frances. Employment Law 2nd Edition, 2023, 5-35 where the author states

 Furthermore, agency workers having a permanent contract of employment with the employment agency do not fall within the scope of the Act.

The respondent also refers to the European Court of Justice case of LD v ALB FILS Kliniken Gmbg (Case C-427/21) EU:C:2023:505 where it is stated at paragraph 50 thatthe directive refers exclusively to employment relationships which are temporary, transitional or limited in time, and not permanent employment relationships.

Where the Act purportedly relied on by the complainant transposes this Directive into Irish law it is clear that due to the fact she was a full-time permanent employee at all material times the claim under this piece of legislation must fail as a matter of law.

In relation to the complaints CA-00067780-002, CA-00067780-003, the complainant is seeking monies for annual leave she claims was not paid to her when she left her employment.

The Respondent denies that the complainant is owed any monies for unpaid leave.  There is an error in how the complainant calculates the leave to which she was entitled.

The complainant prepared the following table to show what she claimed:

Table1.

Table2.

The methodology is adopted by the complainant is incorrect in calculating the sum she believes she owed based on the number of workdays in 2024 which would be 252 days.

This is not the method used by the respondent and annual leave is calculated based on there being 365 days in the year. This is the appropriate method in circumstances where the complainant is not an hourly worker but a salaried worker but a specified annual salary. The complainant’s final payslip confirms that this sum was paid the complainant is not owed anything further.

Supplementary Submission

This is a supplementary submission in response to the request from the Adjudicator on the date of hearing to clarify the relationship between the “client” the “Vendor” and “respondent.”

The client is a multinational pharmaceutical company operating worldwide and specifically in regard this matter has a site in Swords Co. Dublin. (MSD). The Vendor is an international recruitment and employment agency who acts as a vendor on behalf of the client. The respondent operates on behalf of Vendor to recruit experts within the Life Science industries amongst others to supply skilled labour to the client through the agency in this particular case.

There is no contractual relationship between the respondent and the client. The Respondent is hired by the agency to source and supply workers to the agency who has a contractual relationship with the client.

As previously outlined the complainant was at all times a fulltime permanent employee of the respondent. The respondent’s business model is that it provides a service to clients worldwide across the life science industry. In this case the service is the supply of workers and consultants to be assigned to third party client site. In order to facilitate this service, the respondent hires the employees directly, and agrees to source and supply work regardless of the specific clients or the vendor’s needs.

The complainant’s terms and conditions of the employment states at a number of times that she is a full time employee. On the initial opening paragraph the “contract” states:

On behalf of PSC Biotech (PSC), I am pleased to offer you this Full-Time Permanent contract for the position of Laboratory Business Specialist. This letter will serve to confirm the terms and conditions of the offer of employment made herein. We feel that you match our company culture and are pleased to extend this offer of employment.

At point 1 of the “contract” it further states:

Your employment with PSC will commence on: 14th August 2023 (PSC HR will inform you if there is any change to your Start Date of employment due to circumstances outside of our control).

At point 3.2 the contract further states:

You will report directly to Heather Kelly (your Manager), and you shall furnish to your Manager particulars of any matters concerned with and arising out of the performance of your role to such extent and in such form and detail as may from time to time be required. PSC reserves the right to alter your reporting line from time to time on giving notice to you.

At 10.1 the Absence Procedure states:

If you are unable to attend work due to illness or incapacity, you must inform your Manager or Human Resources, you must also inform the client and advise him or her of the nature of the illness or incapacity no later than two hours (as much as possible) after you are due to commence work on that day and on any subsequent day of absence. A text message or voice mail message is not sufficient. You must speak directly to your Manager or PSC HR representative and keep all parties informed about your absence. PSC as your Employer must always be informed. (emphasis added)

It is clear that the complainant was at all times a full-time permanent employee of the respondent, the “contract” includes a number of references to the fact that the relationship between the parties was full time permanent with a reporting structure that was entirely with the respondent.

As outlined in the original submission the complainant was at times a permanent employee and therefore falls outside the scope of the Protection of Employees (Temporary Agency Work) Act, 2012. As previously referenced Meenan, Employment Law 2nd Ed. 2023-chapter 5 Section C, at paragraph 5-35 states that.

The Act does not provide that the self-employed fall within the scope of the legislation. Furthermore, agency workers having a permanent contract of employment with the employment agency do not fall within the scope of the Act. Given that the term “individual” is used in the various definitions, a managed service contract or arrangement does not appear to fall within the scope of the legislation. However, given that such employees are employees of the service provider, arguably employment protection legislation should apply to them in the normal course. There are a number of definitions provided in the Directive (the definitions in the Directive are considered first and then the definitions98 in the Act).

This is reinforced by the European Court of Justice where the LD v ALB FILS Kliniken Gmbg (Case C-427/21) EU:C:2023:505 para 50 where the court held:

Although Directive 2008/104 states, in recital 15 and Article 6(1) and (2), that ‘employment contracts of an indefinite duration’, that is to say permanent employment relationships, are the general form of employment relationship and that temporary agency workers are to be informed of any vacant posts in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment, it is clear from the case-law of the Court that that directive refers exclusively to employment relationships which are temporary, transitional or limited in time, and not permanent employment relationships (see, to that effect, judgment of 14 October 2020, KG (Successive assignments in the context of temporary agency work), C‑681/18, EU:C:2020:823, paragraph 62).

What is clear is that the European Court of Justice is clear in in both LD v ALB FILS Kliniken Gmbg (Case C-427/21) EU:C:2023:505 and the cases referenced is that the purpose of the Directive and therefore Legislation is to protect employment relationships that are temporary, transitional or limited in time and not permanent employment relationships. The complainant was at all times a permanent employee, as is evidenced from the contract of employment and the working relationship between the parties.

There are three complaints. (As noted above the complaints under CA-00069663 were withdrawn at the hearing as the complainant agreed that they were duplicates).

The first turns on whether the complainant was an employee of the respondent or an ‘agency worker’ whose terms of employment are to be determined by reference to the enterprise to which she is assigned.

The key document in that regard is the Contract of Employment. It was attached to the respondent’s submission and not disputed by the complainant.

It does not leave much room for discussion. It was signed by the complainant on November 7th, 2023 (via Docusign) and on behalf of the respondent company by its Managing Director.

Some extracts from the contract appear above in the respondent‘s submission and for the convenience of the reader I replicate them here.

The initial opening paragraph the “contract” states:

On behalf of PSC Biotech (PSC), I am pleased to offer you this Full-Time Permanent contract for the position of Laboratory Business Specialist. This letter will serve to confirm the terms and conditions of the offer of employment made herein. We feel that you match our company culture and are pleased to extend this offer of employment.

The complainant states in her written submission that she was not entitled to be paid during breaks between assignments, but this is not what is provided for in her contract of employment. It was not argued at the hearing and no evidence was adduced of this ever having happened.

It becomes relevant in considering whether she is covered by the Agency Work legislation, among other factors.

It is not in dispute that she had been then assigned to work with a third party company; the situation being somewhat further confused by the fact that her actual employment was in turn a client of a company with whom the respondent had a relationship, although it was stated at the hearing that it was not a direct client. There is more on this in the respondent’s supplementary submission, and nothing turns on it in respect of the complaint.

The complainant states in her oral evidence that she had been interviewed by a person from that latter company, although this was described by the respondent as having been a sort of consultative, or confirmation interview.

Again, while the complainant obviously had practical interactions with co-workers and management within the company to which she had been assigned the contractual position as set out above was that her reporting relationships remained within the respondent.

The impetus for the complaint appears to have been the revelation of salaries of co-workers being higher than that being enjoyed by the complainant.

Section 2 of the Protections of Employment (Agency Workers) Act defines an agency worker as follows.  

“Agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

The Act also defines basic working conditions to include pay, working hours etc.

Section 6 (1) of the Act, which is the nub of the current complaint, states.

(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 complainant has submitted that there was a considerable disparity between her wages and a number of her co-workers including some who were working at a lower grade.

The respondent has relied on an exception to the Act and has set out both case law and a reference to the work, Meenan, Employment Law 2nd Ed. 2023 chapter 5.

This relates to what is colloquially known as the “Swedish Derogation.” The following is an excerpt from the Guidance Note offered by the WRC on that matter. (See Section 6(2) of the Act).

‘The Act allows for a derogation from the principle of equal treatment in relation only to Pay in respect of agency workers who have a contract of indefinite duration with the employment agency.

This means that agency workers who have such contracts with an agency do not have to receive equal treatment in relation to pay, provided they are paid in between assignments.

The Act specifies conditions that attach to this exemption:

1.       An agency worker must be made aware that if they sign a contract of indefinite duration, they are exempt from the provision of equal treatment insofar as it relates to Pay. An employment agency should inform the agency worker in writing of the implications of this derogation so they can make an informed decision as to whether they are willing to agree to forego this right and enter into such a contract.

2.       The contract of employment has to contain a statement to the effect that entering into such a contract means that the agency worker does not have a right to equal pay, as set out in the Act. All parties should keep a copy of this notification signed by both the hirer and the agency worker for future inspection.

3.       An agency worker must be paid for the duration of their time between assignments (i.e. during the periods when they are available for work but are not working i.e. when there are no available suitable assignments.

4.       An agency worker must be paid between assignments at a level of 50% of their wage paid during their last assignment and, at a minimum, not lower than the National Minimum Wage. O If their last assignment was covered by an enactment or collective agreement then an agency worker must be paid between assignments at a level of 50% of their wage paid during their last assignment and at a minimum not lower than their pay rate under the collective agreement or enactment.

5.       An agency worker is entitled to all other elements of basic working and employment conditions outside of pay.

(Enumerated for the purposes of this submission)

In general terms, I find that the complainant falls within these provisions insofar as she has a contract of indefinite duration with the respondent.  Some of the relevant provisions of that contract have been set out in the respondent’s submission such as those relating to her reporting lines, including, for example for the purpose of reporting absence etc.

Whether all the requirements in points 1-5 above were met is not evident on the face of the contract of employment and was not argued by either party. Specifically, this arises from the requirements of Section 6(2)(a) of the Act which states, as a condition of the exemption from its terms a requirement that

 (a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and

It is not clear from the Contract of Employment that this was complied with although it may be indirectly inferred from paragraph 4.1 which expressly states what the complainant’s salary will be.

The complainant, on whom the burden of proof fell, rested on mere assertions that she was ‘an agency worker.’

Turning to the complaints regarding a payment for outstanding annual leave (complaints CA-00067780-002 and 003) which relate to the same sum of €279 I accept the respondent’s submission that the calculation was made in accordance with its normal formula and that no further payments arise.

For the reasons set out above  none of the complaints, CA-00067780-001, 002 and 003 are well founded.

Agency Work.