MERANA JAMES v GREENWICH LONDON BOROUGH COUNCIL (2008)

[2008] EWCA Civ 35

CA (Civ Div) (Mummery LJ, Thomas LJ, Llloyd J) 5/2/2008

EMPLOYMENT - CONTRACTS - LOCAL GOVERNMENT

AGENCY WORKERS : CONTRACTS OF EMPLOYMENT : EMPLOYMENT STATUS : IMPLIED CONTRACTS : UNFAIR DISMISSAL : TRIPARTITE RELATIONSHIP : IMPLIED CONTRACTS OF EMPLOYMENT

An employment tribunal had been entitled to hold that there was no implied contractual relationship between a local authority and an agency worker where the provision of work by the local authority and the performance of that work by the agency worker was explained by their respective express contracts with an employment agency and it was not necessary to imply the existence of another contract in order to give business reality to the relationship between the parties.

The appellant worker (J) appealed against a decision ((2007) ICR 577) to uphold a decision of an employment tribunal dismissing her claim for unfair dismissal against the respondent local authority.

J had been supplied by an employment agency to carry out work for the local authority.

J worked under that arrangement for two years but then changed to a different agency and signed a "temporary worker agreement" with them.

During the total of over three years that she worked for the local authority she was subject to a degree of control over her work and conditions, but she was paid by the agencies on the basis of weekly timesheets completed by her.

J was then absent for two months through sickness.

She did not notify the local authority of the reasons for her absence and did not receive sick pay.

Following the period of absence, J returned to work to find that another agency worker had arrived to cover the same shifts.

Thereafter, J did not undertake any further work for the local authority and claimed unfair dismissal.

The tribunal held that there was an absence of the required mutuality of obligation to support the existence of a contract between J and the local authority, and there were no facts from which a contract of service could be implied from the nature of the arrangement.

J submitted that the tribunal was perverse in not making a finding that J was employed under an implied contract of service.

A finding that J was an employee of the local authority was, J argued, the only one that accorded with the practical reality of the workplace relationship between the parties including the length of J's continuous service, that she was expected to work on the days indicated on a monthly rota, and the fact that the local authority expected her to return to work after her sickness.



HELD: The tribunal was entitled to conclude that J was not an employee of the local authority because there was no express or implied contractual relationship between the parties.

J's only express contractual relationship was with the employment agency.

The local authority's only express contractual relationship was also with the agency.

There were no grounds for treating the express contracts as other than genuine contracts.

The relevant question in the tripartite setting was whether it was necessary to imply mutual contractual obligations between the end user to provide the worker with work and the worker to perform the work for the end user.

The tribunal was not perverse in holding that it was unnecessary to imply a third contract between J and the local authority.

The provision of work by the local authority, its payments to the employment agency and the performance of work by J were all explained by their respective express contracts with the agency, so that it was not necessary to imply the existence of another contract in order to give business reality to the relationship between the parties.

Appeal dismissed

Counsel:
For the appellant: Richard O'Dair
For the respondent: Jonathan Cohen

Solicitors:
For the appellant: Hammersmith and Fulham Law Centre
For the respondent: Local authority solicitor

LTL 5/2/2008 (Unreported elsewhere)

Judgment: Approved subject to editorial corrections - 14 pages

Document No. AC0116254

Source: Lawtel http://www.lawtel.co.uk , copyright acknowledged.