The legal status of agency workers continues to cause confusion in the Courts. In some cases, an agency worker may be the employee of the agency, despite having signed a contract in which they say that they are self-employed. In the case of Consistent Group v Kalwak & West Country Foods the workers had entered into contracts with an agency which were headed ‘Self-employed sub-contractor’s Contract for Services’.

However, the workers had in fact all been recruited from Poland by the agency, which had provided transport and accommodation that they had been in no position to refuse, and the contract rendered them unable to work elsewhere during the currency of the agency agreement.

The EAT agreed with the Employment Tribunal that, in reality, the agency ‘had significant control over their working lives’ even though it had no detailed control over them when actually at work with the agency’s customer. That degree of control was sufficient to make the contract a contract of employment, despite its wording.

Points to note:

#  Great care should be taken when entering into triangular agency arrangements for the supply of staff. The Courts and Tribunals now recognise that these arrangements do not necessarily create any employer/employee relationship. Indeed, they are used as a method of preventing such a relationship (with all the associated liabilities on the employer) from arising. However, this has not prevented the Courts from deciding that the worker is in fact an employee of the agency (as in this case) or the end-user (as in the case of Cable & Wireless v Muscat)

#  The wording of any contract will be important not decisive. Advice should be taken in each case as to what the legal implications of any suggested agency worker arrangement might be.