The EAT, in two separate judgments (both decisions of HHJ Peter Clark) has deconstructed and emasculated the Court of Appeal's reasoning in Dacas and the other agency worker cases.
Hot on the heels of the decisions of Elias P. in James v Greenwich Borough Council, and Bean J. in Craigie v London Borough of Haringey, the EAT has held in two further cases that agency workers were not employees of the end user.
First, in Heatherwood & Wexham Park Hospitals NHS Trust v Kulubowila & ors., the EAT pointed out that:
"It is not enough to form that view that because the Claimant looked like an employee of the Trust, acted like an employee and was treated like an employee, the business reality is that he was an employee and the ET must therefore imply a contract of employment." (para. 29)
It held that where the affairs of the parties are as consistent with the express arrangement (ie a triangular agreement), it cannot be said that it is necessary to infer a contract of service between end-user and worker (paras. 30-32).
Second, in Astbury v Gist, the EAT convincingly demonstrates the error implicit in Sedley LJ's throwaway comment in Dacas, that:
"The conclusion of the ET that Mrs Dacas was employed by nobody is simply not credible"
In a superb analysis, HHJ Peter Clark demonstrates precisely how the statutory framework does allow for someone in Mrs Dacas's position to be employed by nobody.
These decisions should both be read by anybody involved in any agency worker cases.