Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawHR practiceAgency workers

Case of the week: Muschett v HM Prison Service

by Personnel Today 25 Feb 2010
by Personnel Today 25 Feb 2010

Muschett v HM Prison Service (HMPS)

Facts

Eric Muschett signed a contract with the Brook Street agency on 15 January 2007. From 22 January 2007 until 10 May 2007, he was supplied to HM Prison Service (HMPS) to work as a cleaner at Feltham Young Offenders Unit. When HMPS terminated his assignment, Muschett brought employment tribunal claims for unfair dismissal, wrongful dismissal, and sex, racial and religious discrimination against both Brook Street and HMPS.

Decision

The tribunal dismissed his claims against HMPS at a pre-hearing review on the basis he was neither an employee of HMPS as defined in s.230 Employment Rights Act 1996 (ERA), nor in the ’employment’ of HMPS in the wider sense under the Sex Discrimination Act 1975 (SDA) or Race Relations Act 1976 (RRA), nor was he a ‘contract worker’ under the relevant discrimination legislation.

Muschett appealed to the Employment Appeal Tribunal (EAT) and subsequently to the Court of Appeal.

Under section 230 ERA, an employee is defined as someone working under a contract of employment, which means a contract of service or apprenticeship.

Under s.78(1) RRA (and other discrimination legislation), ’employment’ means employment under a contract of service or a contract personally to execute any work or labour.

Under section 7 RRA (and similar provisions in other discrimination legislation), a ‘contract worker’ is someone who works for a principal, but who is employed not by the principal but by another person, who supplies them under a contract made with the principal.

The tribunal found Muschett had no written contract with HMPS, and that he worked in accordance with a contract for services for temporary workers between him and Brook Street. He had undergone a CRB check and induction process before working for HMPS, and was supplied with a copy of the staff handbook. While he was under HMPS’s control when carrying out his work and required to carry it out personally, he was paid by Brook Street and he had no contractual obligation to provide services personally to HMPS.

The tribunal judge held there was no mutuality of obligation between HMPS and Muschett, and therefore no contract of employment. In the absence of mutuality of obligation, the tribunal judge also held there was no contract personally to do any work. Muschett was not a ‘contract worker’, as he had no contract of employment with Brook Street. Accordingly, all his claims failed.

The Court of Appeal held there was no basis on which to question the tribunal’s finding that Muschett was not an employee of HMPS. The Court of Appeal also held there was no implied contract for services between Muschett and HMPS. There was nothing in the evidence that necessitated the implication of such an agreement, and, following James v Greenwich BC, only necessity will do.

Implications

In many cases, agency workers will be able to bring discrimination claims on the basis they have a contract of employment with the employment agency and consequently fall under the ‘contract worker’ provisions.

However, there is no doubt that this case does significantly reduce the ability of agency workers to bring discrimination claims. It would potentially be open to employers to insist that agencies only supply workers who are not employed by the agency, to avoid the risk of discrimination claims.

In addition, this case further reinforces the position following James v Greenwich BC, that where there is a valid tripartite contractual relationship between agency, worker and end-user, the courts will rarely imply a contract (whether of service or to provide services personally) between the worker and end-user.

Susan Fanning, employment partner, DLA Piper

Avatar
Personnel Today

previous post
Workplace bullying – a problem for employer and employee alike
next post
Weekly dilemma: restrictive covenants

You may also like

Employment law changes for 2022 and beyond: update...

1 Jul 2022

Four-day week: what are the legal considerations for...

28 Jun 2022

Government to repeal agency workers ban during strikes

23 Jun 2022

Rail strike: PM calls for pay compromise to...

21 Jun 2022

Shapps suggests repeal of agency worker ban during...

13 Jun 2022

Oxford study highlights best gig economy firms to...

9 Jun 2022

Tesco appeal against fire and rehire ban to...

8 Jun 2022

Sickness absence rate in 2021 was highest in...

8 Jun 2022

Right-to-work: first digital identity check providers revealed

6 Jun 2022

Bank holidays: six things employers need to know

5 Jun 2022
  • The ultimate guide to payroll for small businesses PROMOTED | You’ve started a business that has expanded to the point of requiring more staff to meet demand. Congratulations!...Read more
  • NSPCC revamps its learning strategy with child wellbeing at its heart PROMOTED | The NSPCC’s mission is to prevent abuse and neglect...Read more
  • Diversity versus inclusion: Why the difference matters PROMOTED | It’s possible for an environment to be diverse, but not inclusive...Read more
  • Five steps for organisations across the globe to become more skills-driven PROMOTED | The shift in the world of work has been felt across the globe...Read more
  • The future of workforce development PROMOTED | Northumbria University and partners share insight...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+