In Smith v Carillion, the claimant was employed by an agency to work on a construction site. The engagement ended because his name was on a union blacklist supplied to the site owner.

An employee or worker has the right to claim against his or her employer about detrimental treatment on grounds of trade union activities or activities as a health and safety representative.

However, in order to do so, there must be a contract between the claimant and the employer.

The EAT confirmed that in a tripartite agency arrangement such as this, a contract between the worker and the customer (in this case, the site owner) can only be implied where it is necessary to do so. The claim in this case failed.

Points to note –

  • The EAT did not consider it necessary to imply a contract even though it left the claimant without any remedy
  • When deciding whether there is a contract between a worker and an end user, the terms agreed for any particular tripartite arrangement will be relevant, but not conclusive. The fact that this was a long-term assignment, that the claimant was fully integrated into the site owner’s work force, and that the site owner made the decision that he should be dismissed did not assist the claimant in this case.