Strictly speaking James v Greenwich Council was decided right at the end of 2006, but this decision of the Employment Appeal Tribunal (EAT) president, Mr Justice Elias has been one of the most influential decisions of 2007. Whether its influence will continue into 2008 and beyond depends on the Court of Appeal, which heard Mr James' appeal in October 2007 but has still to announce its decision.
At issue in the appeal is whether the EAT was correct to take a narrow view of the Court of Appeal's 2004 decision Dacas, which appeared to open up the possibility of long-serving agency workers becoming employees of the organisation to which their labour had been supplied (the "end user"). In James the EAT suggested that although this was always a possibility, if the arrangements between the agency, the worker and the end user had been implemented correctly, it would only be in rare cases where this could happen. Given the potential impact of the Court of Appeal's decision, the president of the employment tribunals has directed that all cases where the employment status of an agency worker is in issue should be put on hold until the decision is announced.
The underlying reason for this uncertainty is the lack of legislation addressing the employment status of agency workers. This does not appear to be on the Government's agenda, but there have been attempts in Europe to agree the text of a temporary workers' directive which would tackle this. Although a draft text was first published in 2001, the latest attempt to reach political agreement under the Portuguese presidency failed in November 2007.
For the EAT's decision in James v Greenwich Council click here.