Agency Workers

Yet another case on agency workers...

The Court of Appeal has, today, upheld a tribunal's findings that an agency worker was not employed by the agency.

Mr Bunce worked through an employment agency called Skyblue. The contract stated he was not an employee, and that there was no mutuality of obligation. The tribunal found the lack of mutuality of obligation was fatal and, even if not, the agency did not exert sufficient day-to-day control to make him an employee.

This finding was attacked by Mr Bunce on two grounds.

First, he argued that there was a series of short-term contracts, even if there was no mutuality of obligation under an overriding 'umbrella' contract. The Court of Appeal held that there was, in theory, the possibility of a series of separate contracts which, taken together, might give rise to sufficient continuity of employment to bring a claim. But where the express contract contained sufficient detail to set out the obligations for the worker (eg pay rate, obligation to follow instructions from the end-user client etc.), then there was no room to imply a series of second, additional, contracts (paras. 21-24).

Second, he argued that the fact that the contract provided that he should follow the instructions of the end-user was, in itself, sufficient control to give rise to an employment relationship. He argued that the agency had day-to-day control, but delegated it to the end-user. The Court of Appeal rejected this argument, holding that the correct approach is to look at the amount of day-to-day control the agency exerts in practice rather than in theory (paras. 27-29)

Accordingly, the Court of Appeal upheld the finding that Mr Bunce was not the employee of the agency.

Thanks to John Bowers QC of Littleton Chambers, who successfully represented the agency, for notifying me of this decision.

Bunce v Postworth Ltd t-a Skyblue CA 2005