It has always been difficult to determine the status of agency workers in workplace situations. This can cause real problems for employers who find they have unexpectedly gained obligations towards these individuals. In recent decisions (notably Dacas v Brook Street Bureau and Cable and Wireless Plc v Muscat), Tribunals have found that despite being supplied by an agency, these workers may actually be or become employees of the company to which they provide services. Some previous cases have determined that contracts of employment may be implied. Now, following a recent EAT decision in James v Greenwich Council, tribunals have some useful guidance on when to find that an agency worker is in fact an employee of the end-user.

The following are important considerations:

  1. If the actual working relationship is a genuine arrangement such that the parties (agency, worker and end-user) actually have those distinct roles, and there was no previous employment relationship between the worker and end user, then it will be rare to imply a contract of employment;
  2. Length of time of a relationship does not mean that a contract should necessarily be implied; 
  3. Tribunals would be more likely to find that a contract of employment exists where there had been a pre-existing employment relationship and the agency arrangement had been adopted later.