AGENCY WORKERS NOT EMPLOYEES

A Hand Morgan & Owen Fact sheet 

There has been some uncertainty as to when agency workers might be regarded as employees of the business at which they are placed. Two recent cases give some guidance and some assurance to employers.

In James v Greenwich Borough Council the question arose as to whether an agency worker at the Council had a contract of employment with that Council. She suggested that she had an implied contract and relied upon the length of her placement (three years) and the fact that she had been treated in all respects similarly to employees.

Her claim was refused by the Employment Tribunal and on appeal. The finding was that there was no implied contract of employment and that the passage of time could not itself create a contract of employment. At the same time it was stressed that the finding was not a 'one size fits all' finding. In other words agency workers can be regarded as employees of the end user affording rights under the Employment Rights Act 1996, for example to claim unfair dismissal. All the circumstances had to be taken into account.

In Cairns v Bistion UK Limited the worker argued that there could be parallel contracts of service, one between the worker and the agency and one between the worker and the end user at which the worker was placed. The worker’s argument failed on the facts of the case, the decision on appeal being that because there was a contract of service between the worker and the agency there was no necessity to imply a contract between the worker and the end user.

If you are an employer or an employee and require advice as to  any aspect of employment law please contact Nigel Pepper or Patrick Nelson on 01785 211411.

15. September 2008