Agency worker not an employee

The Court of Appeal has decided that Mr Tilson, who was employed by an umbrella company and provided services via an agency to the end hirer (Alstom), was not an employee of Alstom. Mr Tilson was trying to bring a claim of unfair dismissal against Alstom.

This case is particularly interesting because there were elements that suggested there was an employment relationship between Mr Tilson and Alstom; namely:

• there was a high degree of integration of him into workforce
• the contractual arrangements said there would be no control over his work yet this was not true in practice
• he had to notify his line manager of intended holidays.

The Court of Appeal rejected these arguments and decided that Mr Tilson was not an employee. The Court of Appeal made the following general points:

• integration of an agency worker into a workforce is a requirement for an agency worker to be able to provide a satisfactory service
• demonstrating that there was control exercised over work is not necessary to imply an employer-employee relationship
• a requirement to notify holiday arrangements to someone senior is not on its own enough to imply that that person is an employee
• the intention of the parties is relevant; Mr Tilson had rejected offers to become a permanent employee preferring to receive the financial benefits of operating through an umbrella company.

The last point was particularly helpful to Alstom’s case. This ruling serves as a reminder that it is now difficult for agency workers to claim employment rights so long as the contracts in the contractual chain accurately reflect the arrangements. Not every contract covers off the issues fully, and the position can become dangerous from a number of perspectives if the contracts are not all put in place at the right time.

For more information and or assistance with suitable comprehensive contracts please call the Lawspeed team on 01273 236236