Employment status of agency workers

The Court of Appeal has upheld the decision of an Employment Tribunal with regard to James v London Borough of Greenwich.

Ms James was an agency “temp” supplied to Greenwich Council but, following a period of absence, was replaced and subsequently brought a claim for unfair dismissal. As she was not an employee of Greenwich Council she did not have a right to bring a claim. Although she did not have an express employment contract with them, she contended that there was an implied contract as she had worked there for several years and had been treated as though she were a permanent employee.

An employment tribunal found that there was no basis for implying that a contract existed, and the Employment Appeal Tribunal agreed. It said that there could be times when a contract of employment can be implied between an agency worker and the user of that temporary worker (Dacas v Brook street Bureau (UK) 2004 and Cable and Wireless plc v Muscat 2006), but these would be the exception rather than the rule. It will not be down to the length of time the agency worker has been has been placed with the end user but whether it is necessary for that to give business reality to the arrangement. The Court of Appeal agreed with the EAT, in that issues must be decided in accordance with common law principles of implied contract, and that “mutuality” would be necessary.

The Court of Appeal did make reference to the current discussions concerning the lack of job protection for agency workers but said that it would be for Parliament, government bodies, employers’ organisations and European institutions to debate rather than for courts and tribunals.