News Article
Agency Workers - Where Now?
When can a contract of employment be implied? In the last six months, the question has been asked on five occasions by the EAT in what has become a vexed issue.The question is asked every time an agency worker argues that the agency’s client or end-user is their employer in the absence of any express contractual relationship between them. What’s the answer? Currently, it’s something of a mess.
The Court of Appeal’s position in Dacas as endorsed in Muscat is that Tribunals are not bound by the content of written contracts and will look at the circumstances of the working relationship and in particular its duration to find the essential ingredients of personal service, mutuality of obligations and control. A string of recent EAT decisions: Jones, Craigie, Heatherwood and Astbury have cast doubt on this approach, emasculating the Court of Appeal’s reasoning in favour of a stricter necessity test for implying a contract.
Clearly, Parliament now needs to legislate in this area. This may be in the pipeline. The Department for Trade and Industry has recently commenced a consultation process proposing new measures to protect agency workers. In the meantime, what are the arguments that Tribunals might hear on the interrelationship between the Court of Appeal and EAT decisions?
The full version of the article will be available in the June edition of the ELA Briefing from the Employment Lawyers Association at www.elaweb.org.uk
Alternatively you can download the paper here:
www.12kbw.co.uk/docs/ELA_paper.doc