Smith v Carillion (JM) Ltd  EWCA Civ 209; (2015) EMPLR 031
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.
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