Employment Status and Agency Workers

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Is it necessary to imply a contract between an agency worker and an end-user where factors point to a contract as the underlying reality?

No, held the Court of Appeal in Smith v Carillion, upholding the decisions of the employment tribunal and Employment Appeal Tribunal.

The Claimant was a 'blacklisted' agency worker with a management role in the construction industry. The Claimant argued that a 'worker' contract could be implied between him and his end-user, Mowlem (now Carillion), and alleged unfair dismissal by Mowlem for Trade Union activities.

The Court of Appeal rejected various grounds of appeal, and following James v Greenwich London Borough Council, refused to imply a contract between the Claimant and Mowlem. Various factors, such as the Claimant's integration into Mowlem's business and an interview, could not undermine the employment tribunal's finding that there was no contract between the Claimant and Mowlem. The Court noted 'A contract cannot be implied merely because the court disapproves of the employer's objective' if an 'employer' seeks to avoid legal obligations.

A Human Rights appeal was dismissed primarily because the acts complained of, with one possible exception, occurred before the HRA came into force. The Court rejected an argument that the provisions protecting 'employees' (but not 'workers') as safety representatives under S44 ERA should extend to 'workers'. The Court suggested obiter that protection for 'workers' under S146 TULR(C)A 1992 from detriments for Trade Union activities could extend to former workers.