James v Greenwich London Borough Council

EAT: Elias J (President), Mrs A Gallico and Mr D Jenkins: 21 December 2006

The claimant was employed by the respondent council as an asylum support worker until 1997, when she ceased working for a short time. She subsequently began working again for the council through an employment agency, from about September 2001, and in 2003 she moved to another agency which paid a better hourly wage. There was no express contract between the claimant and the council, and the terms of her contract with the agency provided that it was a contract for services between the claimant and the agency and did not give rise to any contract of employment with the agency or with the council. Unlike those working directly for the council, the claimant was not entitled to sick pay or holiday pay and arrangements in respect of sickness and holiday were made by the agency. The claimant was absent from work due to sickness in August and September 2004 and the agency provided another worker in her absence. When she returned she was told that she was no longer required as the agency had replaced her. On the claimant's claim against the council for unfair dismissal, the employment tribunal found that, as there was no obligation on the claimant to provide her services to the council, or on the council to provide her with work, sick pay or holiday pay, there was no irreducible minimum of mutuality of obligation necessary to create a contract of service, and no facts from which such a contract could be implied between the claimant and the council. The employment tribunal accordingly held that the claimant was not an employee, as defined by section 230(2) of the Employment Rights Act 1996, and dismissed her claim.

The claimant appealed.

The Employment Appeal Tribunal held:
It was not particularly helpful to focus on the existence of the irreducible minimum of mutual obligation when the issue was whether a contract could be implied between an agency worker and the end-user. In such a case the issue was whether the way in which the contract was in fact performed was only consistent with an implied contract between the worker and the end-user and was inconsistent with there being no such contract. The tribunal had been entitled to find that no circumstances existed justifying inference of an implied contract between the claimant and the council, since there was no necessity to imply a contract, given that there was an agency relationship regulating the position of the parties, and the mere passage of time was not sufficient to require any such implication.

The appeal was dismissed.

Appearances: Roger Barton, representative (Unison Legal Services) for the claimant; Jonathan Cohen (Solicitor, Greenwich London Borough Council) for the respondent council.