Claims of Employment Rights
Over the past decade the number of cases brought by temporary workers against agencies and/or clients has grown.
Few temporary workers are engaged on contracts of employment and so do not enjoy the same employment rights as permanent employees. The reasons why agencies do not employ their workers include:
- The need for employment businesses to have available a vast pool of workers at any one time
- The cost of obtaining employers liability insurance for workers over whom the agency has no direct supervision or control
- The ability to react to the flexible needs of the clients without incurring huge financial liability.
In order to succeed with a claim for, say, unfair dismissal a worker must establish that s/he is employed on a contract of employment. There is no statutory definition of a contract of employment.
As a result case law has established 4 essential factors for deciding whether an individual is an employee or not.
These are:
- That there is a contract between the employee and the employer;
- That the employee will perform the work personally (and may not, in practice, substitute another to do the work in his place);
- That the employer is under an obligation to provide work and the employee is under an obligation to perform the work;
- That the employee is subject to the employer’s right to control how, when, and where they do their job.
In the context of agency workers supplied by an employment business it is rare that all 4 factors can be established either in the relationship between a worker and their employment business or the worker and you, so most claims fail on this basis.
