Agency Workers are not employees – probably

The Court of Appeal has published its decision in James v Greenwich Borough Council

The Court agreed with the EAT that there was no necessity to imply a contract of employment between the agency worker and the end user despite the fact that the worker in question had been engaged for some years.

Although the Court denies that there was any conflict between the EAT’s decision and the earlier CofA decisions in Dacas v Brook Street Bureau and Muscat v Cable & Wireless; Mummery LJ (who was one of the judges in Dacas) has clearly backed away from the idea of implying a contract in order to give unfair dismissal rights to agency workers. While it is technically still possible for an implied contract of employment to arise, this is likely to be confined to ‘sham’ cases where the agency is only really being used as an outsourced payroll.

Employers will be relieved by this decision but be aware that it is still possible for agency workers to acquire employment rights if things are not managed carefully and there are a number of rights – such as the right not to be discriminated against that agency workers are explicitly entitled to.

For a detailed briefing on agency workers – and everything else going on in employment law talk to Paul Gasowski on 0208 943 1099 and book an in-house employment law update.

Cheers

Darren