The applicant cleaner sought compensation for unfair dismissal. The issue was whether she was an employee of the respondents, of their client where she did her work, or was not an employee at all. She worked for an agency, who sent her out to offices to work. The court was called upon to give guidance as to the difference between a contract of service, and a contract for services, in the context of such triangular arrangements.
Held: The appeal by the Agency was allowed. ‘The starting point is that it is highly unlikely that paid work was done by the applicant in the absence of a contract of some kind.’ The tribunal should not focus on the contracts alone, but should go back to the words of the statute. The statutory definition of a contract of employment as a ‘contract of service’ expressly includes an ‘implied’ contract, and a contract of service may be deduced as a necessary inference from the conduct of the parties and from the circumstances surrounding the parties and the work done. Whilst it was now too late to address the situation as between the claimant and the council, an implied contract may have existed, but she was not an employee of the appellant bureau.
Mummery LJ said: ‘Although there was no express contract between the applicant and the end user in this case, that absence does not preclude the implication of a contract between them. That depends on the evidence, which includes, but may not be confined to, the contractual documents.’
Judges:
Lord Justice Mummery, Munby J
Citations:
[2004] EWCA Civ 217, Times 19-Mar-2004, [2004] ICR 1437, [2004] IRLR 358
Links:
Statutes:
Employment Rights Act 1996 94 230(2)
Jurisdiction:
England and Wales
Citing:
Cited – McMeechan v Secretary of State for Employment CA 11-Dec-1996
The respondent as a temporary worker was entitled to be treated as an employee of an agency within the contract governing the particular engagement where money was due when the agency went into liquidation. He was therefore able to claim against the . .
Appeal from – Dacas v Brook Street Bureau (UK) Ltd, Wandsworth London Borough Council EAT 12-Nov-2002
EAT Contract of Employment – Definition of Employee . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Market Investigations v Minister of Social Security 1969
One way of deciding whether a person is self employed is to ask whether he can be said to be running a business of his own. Different tests may have to be combined to produce an overall answer.
Cooke J said: ‘The fundamental test to be applied . .
Cited – Massey v Crown Life Insurance Co 1978
. .
Cited – Young and Woods Ltd v West CA 11-Feb-1980
The applicant had complained of unfair dismissal.The employment contract had been dressed as a self employed service provider’s contract to privide him with tax, and was unlawfully so. The employer appealed, saying that as an unlawful contract, the . .
Cited – Clark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
Cited – Mears v Safecar Security Ltd CA 2-Jan-1981
There is generally a presumption that sick pay will be paid. A term would be implied if the contract was silent on the point. In implying terms into a contract of employment (the terms in that case relating to sick pay) courts and tribunals were not . .
Cited – Montgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Nethermere (St Neots) Ltd v Taverna and Gardiner CA 1984
The court considered what elements must be present to create a contract of employment.
Held: Stephenson LJ said: ‘There must . . be an irreducible minimum of obligation on each side to create a contract of service.’
Kerr LJ said: ‘The . .
Cited – Wickens v Champion Employment EAT 1984
The claimant was an employee of the defendant employment agency. She was dismissed, but in order to succeed, she had to show that the agency had more than 20 employees. To do so she had bring the agency workers in as employees. The tribunal . .
Cited – Ironmonger v Movefield Ltd t/a Deering Appointments EAT 1988
A court should not infer that a person is an employee not an independent contractor only because he or she does not appear to be running a business. The tribunal should have applied the definition from the 1976 Regulations which defined a self . .
Cited – Construction Industry Training Board v Labour Force QBD 1970
In this industrial training levy case there was an appeal on a point of law against the imposition of the levy on a company, Labour Force Limited, which was engaged in the supply of labour to contractors in the construction industry, but not as an . .
Cited – Raymond Franks v Reuters Limited, First Resort Employment Limited CA 10-Apr-2003
The appellant challenged the decision that he had not been an employee of the respondent. He had worked for them first through an agency, and come to be closer to them, but was still not paid sick pay. He complained that the tribunal had decided he . .
Cited – Stephenson v Delphi Diesel Systems Ltd EAT 11-Nov-2002
The applicant was an agency worker with an employment agency.
Held: The end-user was under no legal obligation to pay the applicant and the applicant was under no legal obligation to work for the end-user. Control over the applicant by the . .
Cited – Costain Building and Civil Engineering Ltd v Smith, Chanton Group Plc EAT 29-Nov-1999
EAT Contract of Employment – Breach of Contract . .
Cited by:
Approved – Cable and Wireless Plc v Muscat CA 9-Mar-2006
The worker was employed via an employment agency. The contract the company had was with the agency, and the agency had the contract with the worker. The worker claimed an implied contract of employment with the end-user.
Held: The end-user . .
Cited – RSA Consulting Ltd v Evans CA 23-Jul-2010
The respondent worked as a consultant for the appellant through an intermediary agency. When the arrangement was terminated, she had made a claim alleging an unauthorised deduction from her wages in repect of a contractual period of one month’s . .
Cited – James v Greenwich Council EAT 18-Dec-2006
james_greenwichEAT06
EAT Contract of Employment – Definition of employee
The Appellant was supplied by an agency to carry out work for Greenwich Council. She had no express contract with the Council but she contended that there . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 11 September 2022; Ref: scu.194120