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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
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Question: |
I work for a company via an agency.
Am I an employee of the end user company? |
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Answer: |
The
short answer is that people working for an end-user via an agency, may
encounter significant difficulty establishing that they are an ‘employee’ of
the end user, and therefore have protection from being unfairly dismissed
etc. This can be the case, even if the worker has been there for years. In
James v ‘The temporary worker contracts with BS
Social Care in the capacity of a self-employed worker in relation to each
assignment’ The
EAT held that the Tribunal was entitled to conclude that there was no
mutuality of obligation and that there was no employment contract. In
deciding whether a worker supplied to an end-user client by an employment
agency is in law an employee of the agency's end-user client, the passage of
time is not by itself sufficient to mean that a contract of employment can or
should be implied and this is so even if the arrangement continues for longer
than originally expected. If
an agency supplied worker wishes to assert that she is an employee of the end
user (for example with a view to claiming unfair dismissal) then, assuming
the original agency arrangements were genuine, it will be necessary for her
to show that there have evolved "..... mutual
obligations binding worker and end user which are incompatible with those
arrangements". In
Muschett v HM Prison Service 2010,
where the Court of Appeal considered whether the relationship of Mr Muschett, an agency worker, with HM Prison Service had
developed into that of an 'employee' with all the potential rights that that
brings. Where
contractual terms are clear, as they were in this case, by an analysis of the
elements of control, personal performance and mutuality of obligation in the
work carried out by the Appellant (applying the Court of Appeal's decision in
James v LB Greenwich [2007]), there is no need to
imply a contract of employment. Mr Muschett was not
an employee. Further,
because he had no contractual obligation to HM Prison Service to do any work
for them, and because there was no contract between him and HM Prison
Service, he had no contract for service under the Race Relations Act. Therefore,
as case law currently stands, it appears that it will be much harder for the
agency worker to argue that she is an employee of the end user company. New regulations for agency workers in 2011: The
government plans to give more protection to Agency Workers and to implement
the EC Temporary Agency Workers Directive are under
review. The plan was that after working
for 12 weeks, agency workers should be treated equally compared to permanent
workers on basic employment conditions such as pay, working hours and
holidays and access to vacancies. Employees
can be awarded up to £5,000 if employers take avoidance measures (such as
rotation between 11 week assignments in different roles). There is a minimum
award of 2 weeks pay for breach of the equal treatment duty. In
certain areas, entitlement to rights, including equal treatment, will kick in
from day one of the job: for example, the right to receive information about
job vacancies; the right to equal access to on-site facilities such as child
care and transport services; and improved protection for new and expectant
mothers - such as adjustments to working conditions and hours. The
planned regulations will now not be introduced before April 2011 at the
earliest. See also time off for agency
workers. Last
reviewed: July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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