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 was an implied contract, given in particular that she had worked for the Council for a period of some five years and had been treated in all respects like other permanent employees. The Tribunal considered whether there was an implied contract, following the guidance given by the Court of Appeal in Dacas v Brook Street Bureau (UK) Ltd  ICR 1437. It concluded that there was no mutuality of obligation and therefore no contract with the Council at all. The Appellant submitted that the Tribunal had erred in law and reached a perverse conclusion. The EAT rejected the appeal, holding that the Tribunal had properly assessed the evidence and was entitled to conclude that there was no mutuality of obligations. The EAT made certain observations about the circumstances in which an Employment Tribunal might properly infer an implied contract between the worker and the end user.
Elias P J said: ‘When the arrangements are genuine and when implemented accurately represented the actual relationship between the parties – as is likely to be the case where there was no pre-existing contract between worker and end user – then we suspect that it will be a rare case where there will be evidence entitling the Tribunal to imply a contract between the worker and the end user. If any such contract is to be inferred, there must subsequent to the relationship commencing be some words or conduct which entitle the Tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed, and that the reality of the relationship is only consistent with the implication of the contract. It will be necessary to show that the worker is working not pursuant to the agency arrangement but because of mutual obligations binding worker and end user which are incompatible with those arrangements.
Typically the mere passage of time does not justify any such implication to be made as a matter of necessity, and we respectfully disagree with Sedley LJ’s analysis in Dacas v. Brook Street Bureau (UK) Ltd  ICR 1437] on this point. It will no doubt frequently be convenient for the agency to send the same worker to the end user, who in turn would prefer someone who has proved to be able and understands and has experience of the systems in operation. Many workers would also find it advantageous to work in the same environment regularly, at least if they have found it convivial. So the mere fact that the arrangements carry on for a long time may be wholly explicable by considerations of convenience for all parties; it is not necessary to imply a contract to explain the fact that the relationship has continued perhaps for a very extensive period of time. Effluxion of time does not of itself establish any mutual undertaking of legal obligations between the worker and end user. This is so even when the arrangement was initially expected to be temporary only but has in fact continued longer than expected. Something more is required to establish the tripartite agency analysis no longer holds good.’
Elias P J
 UKEAT 0006 – 06 – 1812,  UKEAT 0006 – 06 – 2112, UKEAT/0006/06,  IRLR 168,  ICR 577
Bailii, Bailii, EATn
Cited – 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 . .
Approved – James v London Borough of Greenwich CA 5-Feb-2008
The court considered whether an agency worker could be an employee of the defendant. Mummery LJ said: ‘As illustrated in the authorities, there is a wide spectrum of factual situations. Labels are not a substitute for the legal analysis of the . .
Cited – Muschett v HM Prison Service CA 2-Feb-2010
The claimant had been employed through an employment agency to carry out work for the respondent. He appealed against dismissal of his appeal against a ruling that he was not a worker for the respondent under the 1996 Act. He said that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 October 2021; Ref: scu.247868