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An agency worker who deemed it “perverse” that she couldn’t claim for unfair dismissal is set to clarify the legal criteria that decides when all agency workers are due employment rights. The appeal of James V Greenwich London Borough Council will alter existing case law so much so that all other cases of agency workers pursuing employee rights have been shelved until the judgement. “Stays are put in place when an upcoming judgment will have an impact on current cases,” a spokesman for the Employment Appeals Tribunal (EAT) confirmed yesterday. “Whatever the judgment in this case is it will be able to be referred to in future cases, in this sense it is a clarification [of the law].” In the case, the agency worker, James, argued that a contract of employment could be implied between her and Greenwich, the end user, because she had worked there full-time for four years. She argued this despite her contract with the local authority stating that clauses in the agreement should not give rises to a contract of employment with either the client or agency. But last December, her lawyers said that in light of the long time she had worked for the local authority; an implied employment relationship existed “by custom and practice”. If their argument had been accepted, she could have claimed for unfair dismissal – a complaint she made after she was told by Greenwich that her services were no longer needed due to her absence. Her absence was due to her falling ill, however, and while away from her placement, her agency sent a replacement worker to carry out the duties that Greenwich still required. But contrary to James’ wishes, the tribunal dismissed her claim of implied employment, saying the criterion of mutuality of obligation did not exist between the parties. She blasted the decision as “perverse.” The tribunal explained: “There was no obligation upon James to provide her services for the local authority and there was no obligation on the part of the local authority to provide James with work, sick pay or holiday pay, and that in the absence of the required mutuality a contract of employment between James and the local authority could not exist.” This decision is due to be reinforced - or reversed - imminently. Legal experts won’t be drawn on the likelihood of either outcome. But the experts told Contractor UK that the stay on similar cases implies the magnitude of the Court of Appeal’s decision, which was made two months ago but reserved because of its scope. Roger Sinclair, legal consultant at Egos Ltd, said it is clear that, by ordering a stay, the President of the Employment Tribunals “considers that this appeal will clarify the law in a way which may affect the way in which these cases will be decided.” He added: “Whilst it doesn't necessarily mean that James v Greenwich will be reversed (although it may well mean that), what it probably does mean is that the reasoning and application of principles will be different to that expressed in the decision under appeal.” Some observers believe the judgement will effectively reverse the outcome of Dacas V Brook Street, where an implied contract of employment did exist in light of the client having objective and effective control of the worker’s contract. If they are to be believed, such a judgement might mean agency workers may be in an employee-style relationship with their clients, but may not have much recourse to claim their rights. One recruitment law expert took a different view, but cautioned that his expectation, like those tabled by other commentators about the case, was mere “speculation.” Adrian Marlow, managing director of Lawspeed, said: “We are of the view that the outcome of James v Greenwich may be to uphold the rules in Dacas, and ‘clarify’ the guidance in the EAT’s decision in James v Greenwich to the extent that tribunals stop instantly dismissing claims by agency workers. “This would explain the stay, to stop the claiming workers from being prejudiced by the tribunal following guidance with which it profoundly disagrees, but of course there may be other reasons.” He added: “We don’t generally consider that these agency worker employment cases, relating to whether there is an implied employment contract, are relevant to IR35.” For groups like the PCG and the REC, which oppose employee-style rights or protections for agency workers, the tribunal sounded an ominous recommendation in its last decision. “It is clear that the Employment Appeal Tribunal had sympathy with the protection of worker’s [James’] rights but accepted the position in this particular case. It is an area of law which will no doubt be revisited again until the government decide to legislate to clarify the overall position.” Dec 14, 2007 Email this article Printer friendly page Previous Page
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