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Smith v Carillion (JM) Ltd  EWCA Civ 209; (2015) EMPLR 031
18 March 2015
Court of Appeal, Civil Division
Elias, Fulford LJJ and Dame Janet Smith
If there is no contract between an agency worker and the end
user, the agency worker is neither an employee nor a worker for the purposes of
employment protection legislation. It may be possible to imply a contract where
that is necessary for business reality and where in reality enforceable
obligations exist. But no contract can be implied where the parties would have
conducted themselves in the same way even if there had been no contract.
In this case, S needed to establish that he had been an
employee in order to establish his claim of ‘action short of dismissal’ (that
phrase is replaced in current legislation by ‘subjected to a detriment’) on
grounds of his trade union activity.
S accepted that he had been supplied to M Limited by an agency
and that there was no written contract between him and M Limited. He argued,
however, that a contract should be implied. He worked for M Limited for a long
period; he was fully integrated into the management of the company; he had his
own office there and had power to discipline people below him. The tribunal,
EAT and Court of Appeal all disagreed. Those facts could equally apply if there
had been no contract.
S also relied on the Human
Rights Act 1998. That argument also failed because the acts he complained of
all happened before the Act came into force.