EAT Contract of Employment : Whether Established – VICTIMISATION DISCRIMINATION
Health and safety
Other forms of victimisation
It is a prerequisite of the right under the Trade Union and Labour Relations (Consolidation) Act 1992 section 146 or under the Employment Rights Act 1996 of an employee not to have action short of dismissal taken against him by his employer respectively by reason of his trade union or health and safety activities that there is a contract between him and his employer. The requirement also applied when the protection under TULR(C)A section 146 was extended by amendment with effect from 1 October 2004 to ‘workers’ after the material dates in this appeal. The common law principles applicable to ascertaining whether a contract was to be implied between the employee or worker and the end-user of his services in an agency agreement were those generally applied to all contracts Tilson v Alstrom Transport [2011] IRLR 169 para 8 applied. The Human Rights Act 1998 and Convention rights do not require or permit the implication of a contract between an agency worker and the end-user of his services in circumstances in which domestic law would not. In deciding whether such a contract is to be inferred in a tripartite agency agreement the test of whether it is necessary before implying such a contract continues to be applicable where the facts would be equally explicable without the implication of such a contract. James v London Borough of Greenwich [2008] ICR 302 and Tilson applied.
The Employment Tribunal did not err in holding on the facts before them that no contract between the Claimant and the Respondent end-user had been established.
Slade J
[2014] UKEAT 0081 – 13 – 1701
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 146, Employment Rights Act 1996
England and Wales
Employment
Updated: 28 November 2021; Ref: scu.520021
