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Agency Workers

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The Court of Appeal has, this morning, handed down its decision in James v Greenwich Borough Council.

This case was widely expected to resolve the conflicting authorities on whether and when agency workers become employees of an end-user. A large number of tribunal cases have been stayed pending this decision, pursuant to the President's Practice Direction (see bulletin 30/11/07).

The Court of Appeal has not grappled with what many believe to be conflicting authorities. Instead, it has asserted that no conflict exists (see para. 46), and that all the authorities point the same way. The correct approach, according to the Court, is for an employment tribunal to decide - as a question of fact - whether it is necessary to imply a contractual relationship between agency worker and end-user. As a question of fact, it should not be reviewed by an appellate court unless a clear error of law exists.

So, it's an answer of sorts - but it doesn't provide the clear guidance or answer that many practitioners were hoping for.