The private recruitment industry has grown significantly in recent years and there are now an estimated one million temporary and contract workers.
The exact employment status of an agency worker is important when it comes to determining his or her employment law rights. A person must be an employee – i.e. work under a contract of employment – to have the right not to be unfairly dismissed.
Questions often arise in cases where an agency worker has been dismissed as to whether they were self-employed, employed by the agency or whether the end-user is their employer. In each case, the Employment Tribunal (ET) has to examine the business reality of the arrangements between those involved.
In a case in 2004 (Brook Street Bureau (UK) Ltd. v Dacas), the ET found that neither the Council where Mrs Dacas worked as a cleaner nor the employment agency was Mrs Dacas’s employer. The Employment Appeal Tribunal (EAT) said that the conclusion that nobody was her employer was ‘simply not credible’. The Court of Appeal went on to suggest that in this case there was probably an implied contract between Mrs Dacas and the Council.
Subsequent judgments have cast doubt on this reasoning. In James v Greenwich Council, the EAT said that, in the absence of any contradictory evidence, the mere passage of time does not of itself establish any mutual undertaking of legal obligations between a worker and the end-user.
In a recent case before the EAT (Astbury v Gist Ltd.), HHJ Clark criticised the EAT’s comments in Brook Street Bureau (UK) Ltd. v Dacas. In his view, if Parliament had intended someone in Mrs Dacas’s position to enjoy ordinary unfair dismissal protection, it could have extended that protection to contract workers. It had not done so and to do so would require a change in the legislation.
In Craigie v London Borough of Haringey, in examining whether Mr Craigie, who had worked as a temporary Estates Services Officer for over a year before his services were dispensed with, had an implied contract of service with the Council, the EAT ruled that he was neither an employee of the Council nor of the employment agency, Aptus Personnel Support Staff Ltd., through which he worked. Mr Justice Bean said that “the state of the law regarding the status of long term agency workers is, in my view, far from satisfactory, but it will need legislation to change it.”
The exact employment status of an agency worker is important when it comes to determining his or her employment law rights. A person must be an employee – i.e. work under a contract of employment – to have the right not to be unfairly dismissed.
Questions often arise in cases where an agency worker has been dismissed as to whether they were self-employed, employed by the agency or whether the end-user is their employer. In each case, the Employment Tribunal (ET) has to examine the business reality of the arrangements between those involved.
In a case in 2004 (Brook Street Bureau (UK) Ltd. v Dacas), the ET found that neither the Council where Mrs Dacas worked as a cleaner nor the employment agency was Mrs Dacas’s employer. The Employment Appeal Tribunal (EAT) said that the conclusion that nobody was her employer was ‘simply not credible’. The Court of Appeal went on to suggest that in this case there was probably an implied contract between Mrs Dacas and the Council.
Subsequent judgments have cast doubt on this reasoning. In James v Greenwich Council, the EAT said that, in the absence of any contradictory evidence, the mere passage of time does not of itself establish any mutual undertaking of legal obligations between a worker and the end-user.
In a recent case before the EAT (Astbury v Gist Ltd.), HHJ Clark criticised the EAT’s comments in Brook Street Bureau (UK) Ltd. v Dacas. In his view, if Parliament had intended someone in Mrs Dacas’s position to enjoy ordinary unfair dismissal protection, it could have extended that protection to contract workers. It had not done so and to do so would require a change in the legislation.
In Craigie v London Borough of Haringey, in examining whether Mr Craigie, who had worked as a temporary Estates Services Officer for over a year before his services were dispensed with, had an implied contract of service with the Council, the EAT ruled that he was neither an employee of the Council nor of the employment agency, Aptus Personnel Support Staff Ltd., through which he worked. Mr Justice Bean said that “the state of the law regarding the status of long term agency workers is, in my view, far from satisfactory, but it will need legislation to change it.”
