Following hot on the heels of a number of cases this year in which individuals supplied through employment agencies have been held not to be employees of the end user client, the EAT in Consistent Group Limited v Kalwak & Others and Welsh Country Foods Limited held that Mrs Kalwak and other were employees of an employment agency.

In this case, the EAT held that, whilst the lack of day-to-day control over the work carried out by an agency worker will usually be decisive in there not being an employment relationship between an employment business and the worker, it will not always be the case. Mrs Kalwak and the other agency workers were found to be heavily reliant on the agency, irrespective of the lack of control it had over them when they were actually at work.When this was combined with the fact that the agency workers were under a duty of personal service and that there were mutual obligations between the workers and the agency, it was sufficient to establish that the workers were employees of the agency.