Agency Workers and Triangular Working Arrangements.

Whether or not a contract of employment can be implied between an agency worker and the end-user has been a hot topic in employment law in recent years. To clarify matters, all agency cases were stayed until the Court of Appeal handed down its judgment in James v Greenwich Council in February this year. One such case was an appeal against the decision of the Employment Tribunal (ET) in Beck v London Borough of Camden and Supporta Care Ltd.

Mrs Beck had worked exclusively for Camden for six and a half years. She worked through an employment agency, supplying home help services to residents of the Borough, and had signed a document headed 'Terms of Engagement - Contract for Services', which stated that she was not an employee of the agency. She had her own rota and at one stage moved agencies on Camden's recommendation. The Borough also operated an in-house homecare service and in 2005 Mrs Beck applied for, and was provisionally offered, a position as an in-house support worker. However, a criminal record check revealed that she had recently received a police caution in relation to an assault and she was told she could no longer work for Camden.

Mrs Beck brought a claim of unfair dismissal and breach of contract, both of which depended on her having employee status. The ET ruled that she was an employee of neither Camden nor the employment agency.

Mrs Beck appealed to the Employment Appeal Tribunal (EAT) against the finding that she was not an employee of Camden. She argued that the ET had failed to make a finding as to whether Camden's conduct satisfied the test in James v Greenwich for implying a contract of employment between the parties. In giving Mrs Beck her own rota, Camden had created a mutuality of obligation which, taken together with the degree of control exercised by the Borough over her work, gave rise to a contract of employment.

The EAT dismissed the appeal. In its view the ET had applied the correct test of necessity. It had taken into account guidance regarding the circumstances in which an employment contract should be implied, as provided in James v Greenwich, and had considered the point about Mrs Beck's work rota when reaching its judgment. The ET had also applied correctly the guidance given in James v Greenwich when reaching its finding that the express agency agreement was not a sham but accurately represented the working relationship between the parties. The ET found that the affairs of the various parties in the triangular relationship were as consistent with the express arrangement in existence as they were with the third contract which Mrs Beck was asking them to imply. In the EAT's view, the ET was entitled to find that there was a genuine agency agreement.

In June this year, political agreement was finally reached on the wording of the draft EU Agency Workers Directive. If final agreement on the Directive is reached, agency workers in the UK will be entitled to equal treatment (i.e. at least the basic working and employment conditions that would apply to the worker concerned if they had been recruited directly to occupy the same job) after 12 weeks in a given job.

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