Agency worker is an employee

Johnson Underwood v Montgomery and O&K, unreported, April 2000, EAT

• Montgomery was engaged as a temporary, self-employed worker by Johnson Underwood, an employment agency which assigned her to work as a receptionist for its client O&K on 1 June 1995. Contractual terms were agreed between Montgomery and the agency but she took her daily working instructions from O&K which, in turn, had its own agreement with the agency.

On 12 November 1997, at O&K’s request, the agency terminated Montgomery’s assignment because of her use of the telephone to make personal calls. Montgomery brought unfair dismissal claims against the agency and O&K, but the tribunal held she was only an employee of the agency. Montgomery appealed, as did the agency, against the finding that she was an employee.

The EAT considered the contractual documents and factual circumstances to determine whether Montgomery was an employee and, if so, of which organisation. Taking into account Montgomery’s length of service, the agency’s power to terminate the assignment and the long-term, specific nature of the assignment it held by a majority Montgomery was an employee of the agency rather than O&K. The tribunal’s decisions were upheld.

Delay defeats claim

Listers Solicitors v Lambert, unreported, January 2000, EAT

• Lambert was dismissed on 2 November 1998 and instructed solicitors to pursue an unfair dismissal claim. His originating application should have been presented by 1 February 1999, but was presented four days late on 5 February 1999. The tribunal exercised its discretion to allow the claim to proceed on the basis that it had not been reasonably practicable to present the claim in time and that it had been presented within a reasonable further period. The respondents appealed.

The EAT held that solicitors should take reasonable steps to ensure time limits are complied with and should have a system in place to check that applications are presented in time. Lambert’s solicitor’s system was inadequate because it provided for checks to be made only after the time limit had expired. Accordingly it was not reasonable for time to be extended. The appeal was allowed and Lambert’s tribunal claim could not be pursued.

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