Agency temp Dillon ruled an employee of agency
In March we reported that an Employment Appeal Tribunal had found an agency worker to be an employee of the agency. The case was that of Ms P Dacas versus Brook Street Bureau (UK) Ltd and Wandsworth London Borough Council [Appeal No. EAT/492/02/SM] [11 December 2002]. Another EAT has now reached a similar verdict on another agency worker.
The case in question is that of Recruit Employment Services (appellants) versus Ms Christina Margaret Dillon (EATS/0049/02), which was heard in Edinburgh in March.
Ms Dillon worked as an agency temp at Tesco between November 2000 and February 2002 having been placed there by Recruit Employment Services (RES). Her contract with RES included a clause, which confirmed that:
“For the avoidance of doubt, these Terms shall not give rise to a contract of employment between Recruit and the Temporary Worker, the Temporary Worker shall be under the direction of the Client for the period of the Assignment”
It also included a clause that said:
” The Temporary Worker is not obliged to accept any Assignment offered by Recruit but if he does so, during every assignment and afterwards, as appropriate, he will:
a) co-operate with the Client’s staff and accept the direction, supervision and instruction of any responsible person in the Client’s organisation.”
However, in addition to the agency contract Ms Dillon was also subject to a handbook called “Recruit Employment Services & Tesco” that contained a number of instructions which the relief or temporary worker was obliged to comply with while working for Tesco.
Based on these documents the original ET Chairman had concluded that Ms Dillon was an employee of the agency. In reaching his conclusion the Chairman considered both the general and specific contracts between the worker and the agency.
General and Specific contracts
The ET chairman distinguished between the general contract between the worker and the agency and the specific contract regarding her placement at Tesco. The ET recognised that under the general contract the worker was not obliged to accept any work offered and they were not obliged to offer her work. The general contract did not appear to place the worker under the control of the agency and the ET concluded that there was no mutuality of obligation between the agency and the worker in terms of a general or global contract.
However the ET went on to consider the specific engagement with Tesco and concluded that this was distinct from the general contract with the agency. Here it concluded that:
” It would seem also that the absence of the obligations to offer or accept future assignments becomes irrelevant when looking at the position from the point of view of the specific engagement. “
It concluded that the general terms and conditions in the contract with the agency did not apply in the case of the work at Tesco. Instead it noted that the worker was obliged to comply with the handbook and that this:
” It contained detailed requirements with which she was to comply on a wide variety of matters including – hours, breaks, dress code, lateness, absenteeism, holidays, canteen facilities etc. In addition there were particular disciplinary issues, e.g. (at page A7) a failure to comply with the dress code “ will result in you being sent home without pay”. Again, “ persistent lateness will result in dismissal”. “
The ET concluded that for the period of that engagement the worker:
” bound herself personally to provide her service and the respondents bound themselves to pay her for that service at the agreed rate”
It also noted that the period of work at Tesco had totalled 14 months, which it did not regard as:
” as coming within the concept of “temporary” and indeed it is of course sufficient for the qualifying period for unfair dismissal purposes.”
Ultimately the ET concluded that, regardless of the characterisation of the contract as being one for services, Ms Dillon was an employee of the agency and could claim for unfair dismissal.
The Appeal
At the appeal counsel for the agency tried to argue that the ET should have considered whether Tesco and not the agency might have been the employer, given that the contract between the worker and the agency clearly did not enable the agency to exercise control over the worker and it was only the handbook that affected the issue.
In considering the appeal the EAT noted that:
” If this Tribunal were to take, in the abstract, a different view from that reached by the Chairman it must only do so, conclusively, if it is satisfied that that was the only option open to the Tribunal at first instance which, accordingly, misdirected itself by going in the opposite direction. “
While the EAT considered that there might be a case for arguing that Tesco and not the agency was the employer they also considered that there was a case to be made for the agency being the employer and as such they concluded that:
” we consider that the law permits the conclusion reached by the Chairman on the evidence of this particular case and, accordingly, we will not interfere, whatever conclusion we might have reached, if we were sitting looking at the matter de novo.”
Conclusion
This is, therefore, another case that will alarm agencies and have them looking closely at any special conditions that are imposed in relation to placements at specific clients. However, in terms of wider implications for freelancers, the implications are probably fewer.
The comments of the ET, that were reproduced at the EAT, regarding a 14-month assignment not being “temporary” are of some interest but are unlikely to change the case law. There are also some interesting points regarding the distinction between the “general” contract between the agency and the worker, which failed to meet the necessary requirements for mutuality of obligation and the specific contract for the placement at Tesco. These tend to support the view expressed by the Revenue that MOO can exist within a specific engagement regardless of whether the worker or client have any mutual obligations at the end of a contract.
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