Agency workers

A contract of employment should not be implied where the contractual arrangements in place adequately explain the working relationship between an agency worker and the end user. A significant degree of integration of an agency worker into an organisation is not inconsistent with an agency relationship in which there is no contract between a worker and the end user. When considering whether a contract of employment should be implied into the relationship between parties, their understanding that there is no contract in place between them, whilst not decisive, is a powerful factor against such an implication.

The Court of Appeal held that an agency worker was not an employee of the end user, and nor was he an employee of the end user under the wider meaning in anti-discrimination law.

The EAT reject an employee’s claim that her previous period of working for her employer as an agency worker counted as employment so as to enable her to bring an unfair dismissal claim when she was dismissed within a year of being taken on as an employee. There was no need to imply a contract of employment where the arrangements in place adequately explained the relationship between the parties.

There has been a trend in agency worker cases for workers to be denied employee status, often because of insufficient mutuality of obligation or a reluctance on the part of tribunals to imply a contract of employment where the existing contract accurately reflects the parties’ arrangements.

J had worked for several years for Greenwich, being supplied at all times by an agency. When the council ended her job she sued them for unfair dismissal, a route only open to her if she was an ‘employee’. Here there was a contract between the agency and J and a separate contract between Greenwich and the agency – but no contract between J and Greenwich.