Cost of hired guns

The proposal to resurrect the Temporary Workers Directive would grant agency workers the same rights as employees after six weeks on the job. The UK has made its objections to this clear but is awaiting the outcome, which could significantly affect food businesses regularly using temporary staff.

Meanwhile, courts and tribunals still grapple with the extent to which agency workers are employees. If they are, they will have the same rights as express employees. This could make the end user's life more difficult and expensive, especially when making dismissals where agency workers have worked with the end user for more than a year (and could have accrued the right not to be unfairly dismissed).

In 2004, the Court of Appeal (CA) implied an employment contract between an agency worker and an end user even though there was no express contract between them. The CA directed tribunals to consider if there was an implied contract between the agency worker and the end user by considering whether the relationship had the characteristics of an employment relationship. However, more recent cases appear to be limiting the circumstances where an employment contract will be implied.

Recently, the Employment Appeal Tribunal determined that the agency worker was not an employee of the end user. It decided that the Tribunal should only consider whether there was an implied employment contract where it was necessary to do so. One example would be where the relationship is not managed according to the express (commercial) contract between the agency worker and the agency. However, the case has been appealed to the CA and we await its judgement.

Meanwhile, end users can limit the risk that agency workers are their employees by:

l keeping assignments short - the period is inconclusive, but shorter assignments offer less time for a worker to become integrated and gain employment rights, such as one year's service for unfair dismissal;

l the agency, not the end user, being responsible for as much control of the worker as possible, including grievance/disciplinary procedures and managing holidays/sickness absence;

l keeping distinctions between agency workers and employees, where possible avoiding signs of integration, such as uniform, similar benefits and inclusion on employee rotas;

l ensuring contracts and other documentation reflect the parties' intentions. FM

Georgina Houghton is an associate in Wragge & Co LLP's employment team​