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 company’s appeal failed. The ET was entitled to hold that Mr Muscat had been an employee throughout the period of work for EIL and CandW. They did not misdirect themselves in law; they properly applied the guidance given in Dacas, which guidance was itself correct. ‘If ETs apply their minds to the possibility of an implied contract between the worker and end-user, there will be some cases in which they find that relationship, as in this present case. There will no doubt also be many cases in the future in which ETs will conclude that a worker in the triangular relationship is not an employee of the end-user. That may be because they find that he or she is an independent contractor.’
Lady Justice Smith MR, Maurice Kay LJ
 EWCA Civ 220, Times 10-Apr-2006
Employment Rights Act 1996 94(1) 230(1) 230(2)
England and Wales
Appeal from – Cable and Wireless Plc v Muscat EAT 17-Nov-2004
EAT Practice and Procedure – Bias, misconduct and procedural irregularity – Employment Tribunals and the Employment Appeal Tribunal are bound by the Decision of the Court of Appeal in Dacas v Brook Street Bureau . .
Approved – Brook Street Bureau (UK) Ltd v Dacas CA 5-Mar-2004
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 . .
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 – 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 – 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 – 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 – Carmichael and Another v National Power Plc HL 24-Jun-1999
Staff who worked only as and when required, and who then had the right to turn down work offered were not employees and were not therefore entitled to written particulars of employment. The absence of mutuality and the discontinuity of any . .
Cited – The Aramis CA 1989
The court considered the circumstances under which a contract might be implied: ‘As the question whether or not any such contract is to be implied is one of fact, its answer must depend upon the circumstances of each particular case – and the . .
Cited – Stevedoring and Haulage Services Limited v A M Fuller and others CA 9-May-2001
The claimants were stevedores whose contracts were intermittent. The employer denied that they were employees.
Held: There was no contract while the claimants were not at work. There was no overarching or global contract, and it was not . .
These lists may be incomplete.
Updated: 28 January 2021; Ref: scu.238927