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Employment Status: Agency Workers

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Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Do the principles set out in James v Greenwich LBC, dictating that in an agency arrangement a contract can only be implied between an individual and end user where it is necessary to do so, still apply in light of the Supreme Court's decision in Autoclenz Ltd v Belcher?

Yes, held the EAT in Smith v Carillion.

The Claimant was on a construction industry blacklist and claimed that he was dismissed by the end user because of his trade union activities. Following James, the employment tribunal rejected the Claimant's claims on the grounds that he was not an employee because it was not necessary to imply a contract between him and the end user.

Dismissing the appeal, the EAT rejected the suggestion that the test of necessity in James was no longer good law in light of Autoclenz, which requires employment tribunals to look at the substance of an agreement in employment status cases. Slade J held that the principle in Autoclenz excludes the possibility of a contract if the express agreement does not represent the true position. Autoclenz does not permit a different approach to be adopted in determining whether a contract is to be implied between the Claimant and the end user.