Buddy says: The legal position concerning the status of agency workers has for a long time been far from clear. In the past, agency workers have attempted to claim that they should be treated like employees, thereby enjoying the same rights such as protection from dismissal. It was hoped that a recent Court of Appeal case would clarify the situation.  Whilst this case doesn't provide any definitive answers, it does seem to suggest that it will only be in rare cases that agency workers will be able to successfully argue the existence of an employment relationship with the end-user of their services.

Employer information:  In deciding whether someone is actually an employee, two characteristics need to be satisfied:

1. Day to day control exercised over the individual by the employer, and
2. Mutual obligations – the individual is obliged to work when instructed to and the employer is obliged to pay for such work.

Applying the criteria above to an agency scenario, who is the employer – the agency or the client?

Agencies in the past have successfully shown that the second characteristic above isn’t satisfied, in that they are under no obligation to provide the worker with work and equally, if offered an assignment, the agency worker can refuse to undertake such work. From a contractual point of view, there exists a contract between the agency and the client (to provide temporary work) and, another contract between the agency and the agency worker (for the worker to provide services to the agencies clients). Despite this, some agency workers have been successful in showing that despite the contracts, in reality the client treated the agency worker like an employee. The situation is therefore, far from clear.

It was hoped that the Court of Appeal in the recent case of James v London Borough of Greenwich (2008) would clarify the situation, but sadly it hasn’t. The case concerned Ms James who had worked for a number of years as a housing support worker for Greenwich Council. Ms James provided her services through an agency and was paid by the agency. Ms James however claimed that she was employed by the council. The Court of Appeal disagreed. The Court held that a contract of employment between an agency worker and a client should only be implied where this is “necessary”. Basically, an employment contract should be implied by a tribunal only in cases where, despite being paid through the agency, every other feature of the actual working arrangements between the worker and the client is consistent with an employment relationship. There is no further guidance at this stage as to when it is “necessary” to imply an employment contract, leaving this as a matter of discretion for the tribunal to decide, once it has heard all the facts and evidence.