The Court of Appeal (CA) has refused to extend the rights of agency workers. In the reserved judgment of James v London Borough of Greenwich, which was finally handed down on 5 February 2008, the CA shied away from resolving several conflicting authorities on the circumstances in which agency workers might become employees of an end user. Instead, it took the view that there was no conflict and that all an employment tribunal need do is to decide whether it is necessary to imply a contractual relationship. As (according to the CA) this is a question of fact, it will be very rare for a case to give rise to a point of law sufficient to found an appeal.

In this case, in the absence of an express contract of employment, the CA refused to imply a contract of employment between an agency worker (Mrs James) and Greenwich Borough Council (the council). The council’s provision of work to Mrs James, her performance of that work and the council’s payments to the employment agency were all explained satisfactorily by the existing express contracts between the council and the agency, and between the agency and Mrs James. It was not necessary to imply the existence of another contract in order to give business reality to the relationship between the parties.

The CA also found that the mere passage of time (Mrs James had worked at the council for five years) does not in itself result in the implication of a contract of employment. This is a useful finding for employers, given the judgment in the earlier case of Brook Street Bureau (UK) Limited v Dacas, which seemed to suggest the contrary.

Where next?

Agency workers are no further forward in their battle to claim the same statutory rights (against e.g. unfair dismissal) as permanent employees. The CA made clear that the issue requires legislative change, which is obviously not a job for the courts and tribunals. It is likely that trade unions will take up the challenge again and push for reform. They may gain encouragement from the fact that a group of Labour MPs has pledged its support for a private members bill on temporary and agency workers which was due for its second reading on 8th February - although, of course, private members bills rarely become law. Finally, ongoing European-level efforts to introduce a directive on the issue may get somewhere later on this year despite the fact that the UK government successfully blocked earlier attempts.