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Agency Workers

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[Thanks to Louise Jones of 1 Temple Gardens for providing this case summary]

The Court of Appeal has handed down its decision in Muschett v HM Prison Service, where the Court considered whether the relationship of the Appellant, an agency worker, with HM Prison Service had developed into that of an 'employee', within the meaning of both section 230(1) of the ERA 1996 and the wider test in discrimination law, in particular that of section 78 of RRA 1976.

Where contractual terms are clear, as they were in this case, by an analysis of the elements of control, personal performance and mutuality of obligation in the work carried out by the Appellant (applying the Court of Appeal's decision in James v LB Greenwich [2007] IRLR 168), there is no need to imply a contract of employment. The application of the ERA test confirmed the Appellant was not an employee.

Further, because the Appellant had no contractual obligation to HM Prison Service to do any work for them, and because there was no contract between him and HM Prison Service, he had no contract for service in the context of section 78 of the RRA 1976: he was not an 'employee' applying the discrimination law test.