Employment Update: Temporary workers

10 July 2008

In a deciding whether a contract of employment existed between a project worker and an agency, a Tribunal should have considered the issues of employee status and continuity of employment together.

In 2002 the claimant in Postworth t/a Skyblue v Ashworth entered into a written contract with Postworth that described him as a temporary worker and under this contract Postworth supplied his services as an agency worker from time to time to its parent company Carillion. The written contract should have been renewed after 12 months but never was.

It was accepted that in April 2007 he became an employee of Postworth. His employment terminated in June 2007 and he could only claim unfair dismissal if his previous service could be proved to be a) continuous and b) as an employee of Postworth.

The Employment Tribunal considered the preliminary issue of his employment status on its own and decided that he was an employee of Postworth, not merely a temporary worker.

The Tribunal decided that, at the point where the written contract should have been renewed but was not, he became an employee.

The EAT says that this is wrong because:

  • it seems to assume that the wording of the contract could decide his original status (temporary worker) but what the parties say themselves is never wholly decisive on this issue;

  • there was no evidence that his duties changed at the time when the written contract expired - the parties continued as before;

  • the Tribunal had not considered sufficiently the question of mutuality of obligation. The claimant himself had said that he did turn down some work (though not often). This would tend to suggest that he was not an employee;

  • there should have been a proper analysis of the 'control' issue; who controlled his work - Postworth or Carillion?;

  • Finally, the EAT says that the Tribunal should have considered the issues of employee status and whether he had a sufficient 'umbrella' period of continuity of employment at the same time. Even if the claimant were declared to be an employee, he still had to establish one year's continuity of service before he could bring a claim.

Point to note:

  • The EAT continues to insist that the employment status of temporary workers depends on the detailed facts of each case. Employers should appreciate this and seek expert legal advice if they are unsure. The commercial implications could be significant.

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