A temporary agency worker who thought working for the same client
full-time for four years entitled her to full employment rights has
lost her battle in the Court of Appeal.
Merana James was told that the “mere passage of time” she worked at
Greenwich Council did not make her eligible to have the same rights as
workers directly employed by the borough.
Appeal judges did concede, however, that she might have appeared to be
an employee rather than a ‘temporary’ worker, having been paid for work
at the council for several years.
But in reality, Ms James had no direct or “implied” contract with
Greenwich and they had no duty to offer sick pay, nor did any legal
obligation arise to provide with her work.
The court also said there was no “misdirection” of the law by the
Employment Appeals Tribunals, which Ms James approached after Greenwich
replaced her following a period of absence from illness.
Her only contract was with her agency; she had no access to employment
benefits, she could be replaced at any time by the client and was
herself free to find other work whenever she pleased, the judges said.
In December, Ms James said it was “perverse”
that she was unable to file for unfair dismissal because she was
treated like an employee “in custom and practice” when doing work for
Greenwich.
But last month, appeal judges ruled
that she was wrong to presume she had full employment rights, in part
because she had signed an agreement stating she had no implied or
express contractual relationship with the council.
There was also not a sufficient amount of control to indicate full
employment, as Mr James was undertaking work for Greenwich Council
without working to a rota.
Lord Justice Mummery also implied that, despite her protestations, Ms
James knew that her single work obligation was to her recruiter.
“Her only express contractual relationship was with the employment
agency, as she recognised when she changed agencies rather then
employers in order to obtain a higher wage.”
“The implied contract of service approach to the facts found by the ET
it was, in my judgment, entitled to conclude that Ms James was not an
employee of the Council because there was no express or implied
contractual relationship between her and the Council.”
He added: “On proper legal analysis applied to the uncontested facts,
it was not necessary to imply a contract of service between the parties
and the ET made no error of law in rejecting her claim to the status of
a Council employee.”
The judgement represents “a triumph for common sense”, according to the Recruitment and Employment Confederation.
Belinda Brooke, head of legal services at the REC, said: "It has been
made clear that unless there is a change in the law an employment
contract between an agency worker and an end user can only be implied
if it is necessary to make sense of the arrangements between the two
parties."
The "REC is greatly encouraged by this decision. The government has
made its policy on the matter of employment status clear and the courts
should not be used as a device to bring about policy change.”
The appeal court stressed that there is "no current government
proposal" to provide agency workers equal rights to full-time staff.
But it did confirm that negotiations had begun over controversial EU
legislation to give agency workers similar rights to those enjoyed by
employees.
Feb 12, 2008
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