For many years there has been a lack of clarity as to
whether an agency could have employment rights as against a hirer. More
technically minded readers will know that the ruling in Dacas (2004)
first really set the cat amongst the pigeons, when the Court of Appeal
implied that an agency worker could be an employee under an implied
(e.g. unwritten) contract. Dacas was rapidly supported by a further
Court of Appeal ruling in Cable and Wireless – v- Bushaway (2005).
result was that every Employment Tribunal thereafter felt obliged to
consider in every agency worker case where unfair dismissal or
redundancy was claimed whether there was an implied employment
contract. Bad news for recruiters supplying workers because end users
rapidly became paranoid (and rightly so).
however in the appeal hearing of James v Greenwich the Court of Appeal
has clarified its position. Agency workers will not generally be
regarded as implied employees unless they work in a way that is not
properly reflected in the worker’s agreement with the agency.
case will no doubt reduce the number of agency worker claims based upon
unfair dismissal or redundancy, and definitely represents good news.
However the clarificationn only extends to situations where the
contract and work arrangements are consistent. Where they are not,
claims may still be made to Tribunals on basic principles and
employment businesses still face risk.
Is this the end of agency workers employment issues?
Definitely not. There are moves afoot both in the EU and at home which threaten to affect status going forwards.
For more advice call 01273 236236.