In one of a number of cases stemming from blacklisting activity in the construction industry, the Court of Appeal has held that it was not necessary to imply a contract between an agency worker and the end-user client to whom he provided services (Smith v Carillion (JM) Ltd and another). As a result, Mr Smith failed at the first hurdle in his attempt to bring detriment claims for trade union and health & safety activities against the end-user client.

The case confirms that individuals who are placed for work through an agency will find it very difficult to establish that they are either a worker or an employee of the end-user client, as the courts will only imply a contract if it is necessary to do so. It is not sufficient that the conduct of the parties is consistent with the intention to enter into a contractual arrangement, nor does it matter that the absence of a contract appears to result in injustice for the individual, as was the case here.