Agency Workers

Another decision on agency workers (see bulletin 26/3/03) - this time from the Court of Appeal.

It is authority for the proposition that an implied employment relationship may arise between 'temp worker' and the 'client' of the temp agency. It supports the 'status' rather than 'contract' approach to determining who is an employee.

In Franks v Reuters, Mr Franks initially went to work as a 'temp' for Reuters via an employment agency. In the event, he ended up working for five years for Reuters before his engagement was terminated. He was paid (as is normal) by the agency, but subject to the day to day control of Reuters.

The tribunal found there was no contract of employment between Mr Franks and Reuters, thus no mutuality of obligation - and therefore he could not be an employee. The EAT agreed.

The Court of Appeal (Mummery LJ) held that the employment tribunal failed to consider whether there was an implied contract of employment which had come about through conduct. Interestingly, whilst accepting that mere length of service did not confer employment status, Mummery LJ accepted a submission that dealings over a period of years (as contrasted with weeks or months, as with most temp workers) "are capable of generating an implied contrac tual relationship. (para 29)".

The case was therefore remitted back to the tribunal for consideration as to whether an implied contract of employment existed.