• This month

  • …at a glance

• Legal updates

  • Agency workers – yes and, er no
  • Counting expired warnings
  • Homophobic banter not grounds for a successful claim

• Case archive

  • July 09
  • June 09
  • May 09
  • April 09
  • March 09
  • January 09
  • November 08
  • July 08
  • June 08
  • April 08
  • March 08
  • February 08

Enquiries

T: +44 (0) 1451 812 225

info@west-writing.com

Agency workers – yes and, er no

James vs Greenwich Borough Council

EAT/0006/06/ZT

Key facts

James was employed with Greenwich Borough Council for three years through one agency and then transferred to another at a higher daily rate in 2003. She was sick from work during August and September of 2004 and, when she wanted to return to work, was told that she had been replaced by another worker and was no longer required. The Tribunal and the EAT both refused her claim for unfair dismissal as she was not an employee and this hearing was her appeal to the Court of Appeal.    

Decision

The Court of Appeal supported the two earlier decisions and made it clear that the Government would have to legislate if they intended statutory employment rights to extend to agency workers (see this month’s HR News).

Our view

This is contradictory to recent cases reported in this newsletter and will add further grist to the mill of those who are clamouring for legislation. Until the law is made more clear, our best advice for employers of agency staff is:

• Ensure that your documentation is with the agency, not the individual
• Ensure that there is an express statement that the individual is an employee of the agency, not the business
• Do not use the same individual for long periods of time
• Ensure that performance and conduct is managed by the agency, not your managers
• Make sure that salary payments, holiday bookings, sickness reporting etc. is through the agency.