Many employment law rights depend on how much continuous employment an employee has completed. The Employment Appeal Tribunal (EAT) in Scotland has dealt with another case (Wood Group Engineering Ltd. v Robertson) which examined the exact employment status of an agency worker in this context.
Karen Robertson was employed by Wood Group Engineering Ltd. as a receptionist from 1 July 2005 until 17 March 2006, when she was dismissed. Had she been in continuous employment with her employer for one year, she would have been able to bring a claim of unfair dismissal. She had previously worked for the company as an agency worker from November 1991 until March 1994 and from October 1998 until the time she became an employee of the company. Ms Robertson claimed that during this time she had an implied contract of employment with Wood Group Engineering which meant that she did have the requisite qualifying service to bring a claim of unfair dismissal against her employer.
The Employment Tribunal (ET) found that Wood Group Engineering had exercised control over Ms Robertson’s work and that there was mutuality of obligation between them. In its view, the absence of an express contract between them did not preclude there being an implied contract. In reaching this decision, the ET relied on guidance given in the earlier case of Dacas v Brook Street Bureau (UK) Ltd. The judgment in that case has, however, been criticised in subsequent cases dealing with the employment status of agency workers.
The EAT judged that although Dacas v Brook Street Bureau (UK) Ltd. noted and confirmed that control and mutuality of obligation are essentials in a contract of employment, it did not say that if those elements are present, a contract therefore exists. The EAT drew on the more recent judgment in James v London Borough of Greenwich, which said that an implied contract between the worker and the end-user would only be found in rare cases and where there was evidence that the agency arrangements no longer ‘dictate or adequately reflect how the work is actually being performed’.
In the EAT’s opinion it was misleading for the ET Chairman to have placed so much emphasis on matters of control and mutuality of obligations. What should have been examined was whether the working situation that existed was capable of being explained by the existing agency contracts. In this case, if one looked at Ms Robertson’s agency contracts for the periods before she became an employee, there were quite extensive contractual obligations between her and the agencies concerned and there was therefore no need to imply a contract of employment between her and Wood Group Engineering.
Whether or not the Government responds to repeated calls for a review of the problems with this area of the law remains to be seen. Meanwhile Portugal, which began its six months’ presidency of the EU on 1 July 2007, has put forward a proposal to resurrect the draft EU Agency Workers Directive. This aimed to give agency workers the same terms and conditions as permanent workers but was shelved because the EU Council of Ministers failed to agree on its terms.
The Confederation of British Industry has called on the Government to stand firm against renewed EU and union pressure to resurrect the Directive. In its view, the proposal would ‘heavily reduce the key benefit of flexibility that such workers offer to firms, undermining the incentive to employ them’.