Muschett v HM Prison Service 2010 EWCA Civ 24

A temporary worker was held by the Court of Appeal not to be able to pursue claims for discrimination whilst working for an agency’s client. It seems all temps working under the usual agency arrangement with no contractual relationship between the temp and the client and with no obligation to work for the client would similarly lack statutory protection against discrimination at work.

Mr Muschett was placed in a temporary role as a laundry assistant at Feltham Young Offenders unit by Brook Street. He worked at the prison from 22 January to 10 May 2007. He subsequently brought claims against both Brook Street and the Prison Service for unfair dismissal, wrongful dismissal, race, sex and religious discrimination. The tribunal held that he was neither an employee of Brook Street nor in the employment of the Prison Service. As there was an absence of mutuality of obligations he could not be a contract worker. The EAT agreed and Mr Muschett appealed to the Court of Appeal. The appeal was dismissed. He was not an employee of the Prison Service and an employment contract could not be created simply because he wished there to be one.

Mr Muschett was under no obligation to work for the Prison Service and he could terminate his engagement with them at any time by giving notice to Brook Street. This was fatal to his claim to have a contract with the Prison Service.

Key point: The decision that temporary employees have no protection under the discrimination legislation will have far reaching consequences for all agency workers and casual workers. These workers remain therefore vulnerable to discrimination at the hands of the end user. Businesses should treat all workers equally regardless of their status.