Agency workers and their status

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03 December 2010

If you use agency workers, you will be pleased to hear that a recent decision of the Court of Appeal should make it harder for agency workers to argue that they are employees of the end-user of the services.

If you use agency workers, you will be pleased to hear that a recent decision of the Court of Appeal should make it harder for agency workers to argue that they are employees of the end-user of the services.

In the case of Tilson v Alstom Transport, the Court of Appeal held that a significant degree of integration of an agency worker into an organisation is not inconsistent with an agency relationship, in which there is no contract between the worker and the end user.

Although the agency worker was supervised by managers in the organisation and needed to apply to a line manager before taking annual leave (which would usually be seen as characteristics of an employment relationship), the Court of Appeal held that this was not sufficient to imply a contract between the worker and the end user.

The Court of Appeal took the view that, in most cases, it would be unrealistic for an agency worker to provide sufficient service without being integrated into a business to some extent and this would inevitably involve some control over what is done. 

It has previously been held that an agency worker should only be considered an employee of the end user where it is necessary to imply a contract of employment between them.

In this case, the fact the parties would have acted in the same way whether there was a contract between them or not meant there was no need to imply a contract of employment.  The agency worker had, in fact, declined to enter into an employment contract, so implying an employment contract would have been contrary to the understanding between the parties.

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