The Court of Appeal has ruled that temp workers are entitled to employment rights against the 'end-user' company.
Previously, temps engaged through an agency have been unable to claim unfair dismissal against the person they work for. In DACAS v BROOK STREET BUREAU (5th March 2004), the Court of Appeal overturned this long-standing position and stated that once the temp had been working for a year, they obtained the right to claim unfair dismissal against the 'end-user' company.
Daniel Barnett, barrister at 1 Temple Gardens, comments: "This rectifies a long-standing hole in employment rights. Previously, employers could effectively buy protection from unfair dismissal claims by paying the premium of agency fees to an employment agency. The law worked under the fiction that since there was no direct contract between 'employer' and 'employee', there was no contract of employment. If there was no contract of employment, the worker could not claim unfair dismissal."
He adds, "This has the knock on effect that companys are now liable if temps injure anybody, or cause damage to anything, in the course of their employment. One of the main advantages of using agency workers have now gone, and many employers will review their use of expensive agency workers. This is likely to cause a downturn in the employment agency industry."
NOTES FOR EDITORS
1. Mrs Dacas had been supplied to Wandsworth Council, through the Brook Street Bureau, as a cleaner. She had worked as a 'temp' for four years before Wandsworth dismissed her. She lost her claims against Wandsworth and Brook Street in the Employment Tribunal, on the grounds she was not an employee of either organisation. The Employment Appeal Tribunal held she was an employee of Brook Street, but the Court of Appeal has overturned that and said she was an employee of Wandsworth.
2. Lord Justice Sedley commented in the judgment, "The conclusion of the Employment Tribunal that Mrs Dacas was employed by nobody is simply not credible. There has to be something wrong with it."
3. Lord Justice Mummery stated "What difference does the presence of the employment agency really make to the status of Mrs Dacas? ... practical reality and common sense [show] that the Applicant works [for Wandsworth] under an implied contract"
4. In order to obtain unfair dismissal rights, in common with all employees, the temp will have to have worked for the end-user company for one year.
5. The Court of Appeal's decision is available at
Brook Street v Dacas