Is agency worker an employee?

Muscat v Cable & Wireless plc CA TLR 10 April

The fact that a worker was paid by an employment agency and had an agreement with the agency to provide his services to the end-user did not preclude the existence of an implied contract of employment between the worker and the end-user. An employment tribunal should examine all the evidence relating to the relationships between the three parties, including any written agreements and oral statements and also the conduct of the parties. In the light of that evidence, the employment tribunal should consider the possibility that the worker had a contract of employment with the end-user. The essentials of a contract of employment are the obligation to provide work for remuneration and the obligation to perform it, coupled with control. It does not matter whether the arrangements for payment are made directly or indirectly. If there is a contract between the worker and the agency, that has to be examined to see whether it excluded the possibility of a contract of employment between the worker and end-user. That contract might also be useful for determining what the precise terms were of the implied contract of the employment between the worker and end-user. In the present case, it was possible to infer a contract of employment by examining the conduct of the defendant and the applicant and therefore the employment tribunal did have jurisdiction to hear his claim for compensation for unfair dismissal.