Agency workers can only bring discrimination claims against an end-user if they can show it is necessary to imply a contract of employment with agency or end-user, or a contract for services with the end-user, in order to explain the work undertaken. This will be unusual and the majority of agency workers will therefore be unable to pursue discrimination claims against end-users.

The Court of Appeal has confirmed that the necessity test used to determine whether an employment can be implied in an agency worker situation (see James v Greenwich Council) also applies to the issue of whether there is a contract for services with the end-user. There will be no necessity to imply a contract for services where the contracts in place between agency and worker, and agency and end-user, adequately explain the relationship.

This gap in protection seems unlikely to be remedied by the Equality Bill or Agency Worker Regulations. (Muschett v HM Prison Service, CA)