Agency workers
This tribunal decision provides another reminder to employers after Unison v London Borough of Barnet and another ET/3302128/2012 of the information on agency workers that they are required to produce during redundancy consultation.
The Employment Appeal Tribunal has held that the employment tribunal was wrong to decide that employers have a positive duty to correct employees or ex-employees in relation to misapprehensions that they have about time limits for bringing claims.
In Muschett v HM Prison Service [2010] EWCA Civ 25 CA, the Court of Appeal held that an agency worker had neither a contract of employment nor a contract with the end user personally to carry out work. Accordingly, he could not bring complaints of unfair or wrongful dismissal, or of unlawful discrimination, against the end user.
In Consistent Group Ltd v Kalwak and others [2008] EWCA Civ 430, the Court of Appeal remitted to a fresh tribunal the issue of whether or not Polish nationals engaged by an agency to work as meat packers for a third party were employees of the agency.
In James v London Borough of Greenwich [2008] EWCA Civ 35, the Court of Appeal held that, in the absence of an express contract between an agency worker and the end user, a contract will be implied only where it is necessary to do so to give business reality to the situation.
In Consistent Group Ltd v Kalwak and others [2007] IRLR 560 EAT the Employment Appeal Tribunal held that polish workers recruited in Poland by the agency in question and provided with both accommodation in the UK and transport to and from work were employees of the agency. Notwithstanding express written terms to the contrary, the reality of their relationship was one of employer and employees.
In Craigie v London Borough of Haringey EAT/0556/06, the Employment Appeal Tribunal (EAT) has considered when a contract of employment can be implied between an agency worker and an end user.
In Cable & Wireless plc v Muscat, the Court of Appeal holds that the guidance in Dacas v Brook Street Bureau (UK) Ltd is correct, and that tribunals should consider the possibility of an implied employment contract between the worker and end user where there is a triangular worker/agency/end-user arrangement.
In Allonby v Accrington & Rossendale College and others, the European Court of Justice (ECJ) rules that a lecturer employed through an agency could not claim equal pay with lecturers employed directly by the college, but she could claim entitlement to join the lecturers' statutory pension scheme even though it was open only to those with a contract of employment.
Employment law cases: HR and legal information and guidance relating to agency workers.