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TRIPARTITE RELATIONSHIPS: EMPLOYED BY END
USER?
The law on whether the end user is the employer has been fairly settled
since James v London Borough of Greenwich [2008] EWCA Civ 35.
The issue is generally whether a contract should be implied between
the worker and end user, which under contractual principles means
that it has to be necessary in all the circumstances to imply such a
contract. The court in James concluded that the arrangements
between the parties were all explained by two express contracts (ie
worker/agency and agency/end user) and it was therefore
unnecessary to imply the existence of another contract. In the absence
of any contract, the claimant could not be an employee of the end user
or, for that matter, a worker.
Muschett v H M Prison Service [2010] EWCA Civ 25 considered
other ways of making the end user liable. Mr Muschett was an agency
worker placed with HMPS. The Court of Appeal concluded that Mr
Muschett was not an employee as there was no contract of service and
focussed on whether he satisfied the wider definition of worker for the
purpose of his discrimination claims (section 78 RRA: a contract
“personally to execute any work or labour”). In this context they
investigated whether he was employed under a contract for services
and concluded that he owed no obligation to work for HMPS and could
terminate his engagement at any time. There was therefore no
possibility of an implied contract between HMPS and Mr Muschett and
he was not a worker.
CONTRACT WORKER
Leeds City Council v Woodhouse (supra) indicates that in one area at
least the courts are willing to be flexible to attach liability to an end
user. A worker can bring a discrimination claim against a business
which is not his or her employer as a “contract worker” doing work for
that business but employed by a third party who supplies him or her
under a contract with the principal (eg. section 7 RRA). This provision,
normally reserved for agency workers, had not helped Mr Muschett as
he was not an employee of the agency. However, in Woodhouse it was
held that where the Council had sub-contracted its property
management functions to a company who employed the claimant, he
could bring a claim directly against the Council. It was not necessary to
demonstrate the Council had influence and control over the work and
it was not fatal if the work was being performed both for the company
and the Council.
CONCLUSION
Following James and Muschett it is difficult to envisage in what
circumstances an agency worker could succeed in persuading a
tribunal of the necessity to imply a contract between worker and end
user. Often, they are not employees of the agency either. As a result, as
you might expect, agency workers often remain unprotected from
unfair dismissal. Perhaps less expected, Muschett emphasises that
agency workers may not even be covered by the discrimination
legislation, assuming they are not employed by the agency and
therefore are unable to rely on the ‘contract worker’ provisions. It is
concerning if this sector of the workforce can be discriminated against
with impunity because they fall through the gaps in the legislation.
That said, the suggestion in Woodhouse that these matters should be
left for final hearing may have a strong influence on the way
Respondents choose to handle these cases. Faced with a potentially
long and expensive full tribunal hearing (especially in discrimination
cases) it may well be more economically viable for Respondents to
settle these cases early, even in circumstances where it appears that
there is little prospect of the claim against them succeeding.
employment barristers:
David Berkley QC (1979)
Iain Mitchell QC (1976)
Andrew Thompson* (1969)
Paul Staddon (1976)
David Daly (1979)
Simon Cheves (1980)
Robin Howard (1986)
Christopher Bamford (1987)
Stephen Heath (1992)
Catriona MacLaren (1993)
Peter Linstead (1994)
Martina Murphy (1998)
Sarah Stanzel (1999)
Laura Robinson (2001)
Andrew Sheftel (2004)
Louise Mankau (2005)
Paul Stevenson (2006)
Gemma de Cordova (2006)
Cecily Crampin (2008)
`
* Joint Editor of Harvey on Industrial Relations and Employment Law
clerking team
kevin moore
Kevin Moore has been a barristers’ clerk
for 35 years and joined Chambers in 1999
having previously been senior clerk in a
highly regarded commercial set. He is a
member of the Institute of Barristers’
Clerks.
Kevin is responsible for the overall clerking of Chambers and is
happy to discuss any aspect of the service with clients. His flexible
and pragmatic approach to the job is appreciated by solicitors who
instruct Chambers and has been recognised in the Legal 500.
Kevin is married with 3 grown up children who still manage to be
a drain on resources. In his spare time Kevin is a long suffering
supporter of West Ham United FC.
David Wright
David has been clerking for 10 years in
leading commercial and employment sets.
He qualified as a barristers’ clerk in 2002
and is a member of the Institute of
Barristers’ Clerks.
In 2007, David joined Tanfield Chambers as Principal Employment
and Commercial Clerk where he has put his wealth of experience to
good use. His combination of hard-work, organisation and reliability
has proved a real asset to Chambers. When agreeing fees, David
always strives to remain client focussed and fair.
In his spare time David studies Hapkido (a Korean martial art) and
enjoys playing football and badminton. He is also a bit of a film buff.
LAURA ROBINSON & GEMMA DE CORDOVA
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