Agency Worker as employee?
by Sarah
The Court of Appeal has today handed down its decision in James v Greenwich Borough Council, which relates to agency workers and their status. The decision has been awaited for many whose employment claims were stayed pending the outcome of the appeal from the decision of Employment Appeal. Unfortunately the Court of Appeal has not really dealt with the conflicting case law but asserted that it believes all the authorities point the same way.
The background is that Mrs James brought a claim for Unfair Dismissal against the Council when she had a Temporary Workers Contract which said that there was no contract of employment. The Court ruled that the two contracts (agency and employment) are not mutually exclusive.
It is legally possible for a worker to have one kind of contract with an employment agency and another kind of contract with the end user to whom he renders services. This is an exercise in legal classification. The Court ruled that it requires the fact-finding tribunal to examine and assess carefully all the relevant evidence placed before it by the parties in the particular case for the purpose of determining whether the claimant fits the description of an “employee”.
It is only in the absence of an express contract of employment, which may be written or oral, that the ET is faced with the question whether it is necessary to imply a contract of employment between the claimant and the respondent. It is not always possible to predict with certainty how this question will be answered by the tribunal. It is therefore a question of fact and the Court should not interfere with the decision unless a clear error of law exists.
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