In Tilson v Alstom Transport the Court of Appeal upheld the EAT's decision that an agency worker was not employed by the end user of his services, despite the control that the end user exercised over his work. His integration into the end user's organisation was not inconsistent with the existence of an agency arrangement in which there was no employment contract with the end user.

Mr Tilson worked for Alstom Transport and when his engagement was terminated, he brought an unfair dismissal claim against Alstom. A key question was whether he had been employed by Alstom. The Court of Appeal held that it was not necessary to imply a contract of employment between the worker and the end user to give business reality to the situation. The parties would have acted in exactly the same way whether there was a contract between them or not, and there were agreements in place (albeit not between the agency worker and the end user) which fully explained their relationship. It was also significant that the worker had twice expressly abstained from entering into an employment contract with the end user. The parties' understanding that there was no contract between them was a powerful factor against a contract being implied.

The Court of Appeal's decision is a firm reminder that an employment relationship, or contract, should not be implied in cases where it is not necessary to do so to make business sense of what actually occurred. This will be the case even where the relationship between worker and client has all the characteristics of employment, and particularly where the worker enters into the arrangement, and the ongoing relationship, with their eyes wide open and their own agenda.