Matthew Brown says: End users have no reason to panic. The Muscat vs. Cable & Wireless type of scenario is highly unusual, so the outcome of this case gives no indication of how tribunals will rule on future ënormalí claims.
End users and contractors who continue to operate in a professional manner have nothing to fear from this ruling.
Comment:
It has been suggested that the Cable & Wireless case is unusual on its facts and therefore does not apply to the ìnormalî agency worker scenario. Unfortunately this analysis is missing the key finding of the case. The argument centred on whether the guidelines set down by the Court of Appeal in Brook Street Bureau v Dacas, a very ìnormal agency claimî, should be followed. Mr Muscat argued for and Cable and Wireless argued against. The guidelines include the requirement for every tribunal to consider whether there is a direct implied contract of employment in any ìnormalî agency worker case. The Court of Appeal was robust in its support of the Dacas guidelines going as far as to say that ìÖthe guidance provided for Employment Tribunals was unimpeachableî.
It is true that the facts of Muscat are specific and not typical of most agency worker situations. However this case turned on the argument set out above. This means that it is now virtually impossible to rule out the possibility that there may be an implied direct contract of employment wherever the worker provides services to a hirer and is under the control of the hirer and is otherwise treated as an employee. The fact that the worker operates through a limited company or that there is an agency in the chain in itself no longer provides the protection previously perceived.
The Court of Appeal went on to say that ìWe find it hard to imagine a case in which a worker will be found to have no recognised status at all, either as an employee of someone or as a self-employed independent contractorî.
Acting in a professional manner does not assist. Working as genuinely self employed does. Therefore unless both agencies and end-users take the steps necessary to ensure that their workers treat each other on a self employed basis thus excluding an implied employment relationship, they will be taking a significant risk that any employment claim against them may be successful.
In the circumstances, both agencies and end-users would be ill-advised not to take any action, as called for by Mr Brown. We recommend that instead agencies and end users should work together to identify the issues that this crucial Judgment highlights and deal with them robustly after taking suitable advice.
Paula Jones BSc (Hons) PGDip Law
Head of Employment Law
Lawspeed
Comments made by Matthew Brown in relation to the Cable & Wireless v Muscat Judgment
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