The Court of Appeal's recent decision in James v London Borough of Greenwich [2008] EWCA Civ 35 reinforces the view that only on grounds of necessity can a contract of employment be implied between an agency worker and the end-user of the services. It was stated in this case that further developments would need to come from Parliament and that it was not for courts or tribunals to extend protection.

Over several years, Ms James supplied services to Greenwich Council through employment agencies. Written agreements between her and the agencies expressly provided that she would carry out her work as a self-employed 'temporary worker' and that her work would not give rise to a contract between herself and the end-user of her services. Following a time of absence due to illness, Ms J was informed that she was no longer required because the agency had issued a replacement. Therefore, Ms J brought a claim of unfair dismissal. An employment tribunal and subsequently the EAT, held that there was no implied contract of employment and the EAT set out guidance for tribunals to follow in agency worker cases. Ms J appealed to the Court of Appeal but her appeal was dismissed as the Court found that, although it was difficult to describe her as a 'temporary worker', the test of necessity had been applied correctly and no contract of employment should be implied. The EAT's guidance is therefore likely to be relied upon in future agency cases.

For now, at least, agency workers are unlikely to qualify as employees and have the consequent protection afforded to employees. A change in the law seems now the only way to afford agency workers with greater security and employment rights.

© Davenport Lyons 2008. All rights reserved.
This document reflects the law and practice as at April 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.