On Tuesday, the Court of Appeal has handed down judgment on a case which confirms that only on the grounds of necessity can an employment tribunal imply a contract of employment between an agency worker and the end-user of his or her services.
In the case, James v London Borough of Greenwich, the court made it clear that is not for courts or tribunals to extend employment protection rights to agency workers and Parliament would have to be responsible for further developments on this.
Commenting on the judgement, Belinda Brooke, the Recruitment and Employment Confederationís Head of Legal Services said: ìThe decision of the Court of Appeal today in James and Greenwich Council is a triumph for common sense. It has been made clear that unless there is a change in the law an employment contract between an agency worker and an end user can only be implied if it is necessary to make sense of the arrangements between the two parties.î
ìSome commentators may have expected the Appeal Court judges to pass comment on the current law but Mummery LJ refused to be drawn in that direction and would only say that while he recognised the arguments for and against a change in the current law it was not for the courts and tribunals to comment on the merits of either argument. REC is greatly encouraged by this decision. The Government has made its policy on the matter of employment status clear and the courts should not be used as a device to bring about policy change.î
ìREC would be delighted to discuss this issue further. If best practice is followed the chances for confusion in employment relationships should be limited.î
In the judgment, it was said that the agency workerís services were continuously supplied to the Council through agencies over several years. Written agreements between the worker and agencies expressly provided that she would carry out her work as a self-employed temporary worker and there was no need for her work to be the subject of a contract between herself and the end user of her services.
However, after a lengthy period of sickness absence, she returned to work for the Council and told she was no longer required because the agency had sent a replacement. She then brought a claim of unfair dismissal but an employment tribunal ruled there was no implied contract between her and the Council.
So she went to the Court of Appeal who dismissed her appeal, saying that although she could hardly be described as a ìtemporary workerî, the employment tribunal correctly applied the test of necessity in assessing whether an employment contract should be implied between her and the Council.
The Court approved guidance given at the Employment Appeals Tribunal hearing, which is now likely to be the touchstone for all future employment status agency claims.
In closing remarks, the court predicted that future appeals would have little prospect of success where the decision had been reached by applying the test of necessity as described in the Employment Appeals Tribunal.
For full details of the case, please click the link at the foot of the page:
The RECís Legal Reference Guide, accessible to members, will be updated in the light of this judgement.
Agency workerís claim to Court of Appeal fails
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