Case law: can an agency worker ever be an employee?

Businesses that use temporary workers supplied by an agency will welcome two recent decisions heard by the Employment Appeal Tribunal.

The issue raised in the first case was whether a worker supplied by an agency to an end-user, a local council, had a contract of employment with that end-user. The worker argued that she had an implied contract with the local council, given in particular that she had worked for the council for a period of some five years and had been treated like other permanent employees. The court followed the guidance given by the Court of Appeal in Dacas v Brook Street Bureau, and concluded there was no 'mutuality of obligation' and therefore no contract between the worker and the council.

The court also indicated that it would not be appropriate to imply a contract between the worker and the end-user:

• where the end-user could not insist on the agency providing a particular worker; or
• where the agency arrangements were genuine and accurately represented the relationship between the parties; or
• simply on the basis that the relationship had lasted for a long time.

In the second case, the court considered the question: could there be parallel contracts of service between the worker and the agency, and also between the worker and the end-user? On the facts of this case, the court concluded that such a situation did not exist. Since a contract (including unfair dismissal protection) existed between the worker and the agency, there was no need to imply a contract between the worker and the end-user.

Immediate