We have a temporary worker who has been with us for more than two years and has become very much part of the team. Although we have a contract with the supplying agency, their arrangement with our temp is less clear. Are we at risk she may become our employee?
Warning: There is new legislation on the employment rights of agency workers
On 1 October 2011, agency workers will gain the right to the same basic employment conditions as direct recruits after 12 weeks working for the company in the “same role”.
Find out more about the Agency Workers Regulations here, or use the resources below:
If your temp comes to regard herself as an employee with statutory employment rights, the main question is whether there is a contract of service and, if so, who that contract is between.
The Court of Appeal recently issued guidance in James v Greenwich Council (2008). Ms James, a temp, claimed unfair dismissal after being prevented from returning following sickness absence, because another temp had filled her role.
The Court of Appeal held that James, who had been temping at the council for three years and was subject to a degree of control consistent with being an employee, was not actually employed by the council. The court said it was not necessary to imply a contract of service, as the arrangements in place were genuine and reflected the workplace reality.
The duration of your temp’s assignment should not be a problem, as the court in James said passage of time alone does not lead to an employment contract being inferred. However, you should find out what contractual arrangements exist between the supplying agency and your worker. If there are none, or these are ambiguous, insist on this being rectified. Even if your temp has a contract with the agency, this does not necessarily prevent an employment relationship with your organisation. To help counter any suggestion about sham arrangements, you should ensure the way things are managed in practice operates within the boundaries of what is written down.
For the future, leave recruitment to the temping business. Not only advertising the job, but also interview and selection. Only contract with the temping business avoid anything that could be construed as a contract with the temp. Holidays, sickness absence, disciplinary action and claims to family-related leave should be managed by the temping business. Finally, when negotiating a contract with an employment business, seek indemnities covering claims based on employee status. This will focus minds at the outset.
Roger Tynan, partner in the employment, pensions and benefits team, Maclay Murray & Spens