In Betriebsrat de Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH (C-216/15) the ECJ has considered whether bank nurses should be considered "workers" under the Temporary Agency Workers Directive (2008/104/EC).

The ECJ has followed the Advocate General's opinion (see Legal update, Members of not-for-profit association are covered by Temporary Agency Workers Directive (Advocate General's Opinion)) in finding that bank nurses who are members of a German not-for-profit association should be considered "workers" under the Temporary Agency Workers Directive (2008/104/EC) despite not having a contract of employment with the association and not falling under the definition of "worker" under German law.

The ECJ held that the legal characterisation under national law of the form and nature of the relationship between the individual and the agency is not decisive. The key will be whether someone is in an "employment relationship", the essential feature of which is that a person performs services for, and under the direction of, another person for a certain period of time in return for remuneration.

In the ECJ's view, while member states are able to determine the scope of "worker" under national law, they cannot unilaterally define that concept for the purposes of the Directive. If they could, it would jeopardise the aim of the Directive which is to establish a protective framework for workers which is non-discriminatory, transparent and proportionate, while respecting the diversity of labour markets and industrial relations throughout the EU.

The decision highlights the importance which the ECJ will attach to the objectives of EU law, particularly in increasingly contentious areas such as employment status and agency work.

It effectively extends the reach of the Directive to individuals who might not otherwise be considered employees of an agency.

Whether this ultimately matters to the UK depends on what happens next with respect to Brexit and any consequent negotiations.
Case: Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH C-216/15 (17 November 2016) Bailii.

This article was originally published on on 17 November 2016 and is reproduced with the permission of Thomson Reuters.

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