Employment Status of Agency Workers - Appeal Court criticises legal advisers and representatives

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21 February 2008

In a judgement given on 5 February 2008 in the case James v London Borough of Greenwich, the Court of Appeal upheld the decision of an employment tribunal and the Employment Appeal Tribunal (EAT) that Ms. James, a temporary agency worker supplied to Greenwich Council over a number of years, was not an employee of the Council and was not entitled, as a result, to make a claim for unfair dismissal.

Although the decision, in itself, is unremarkable and consistent with many recent EAT decisions and makes no changes to current interpretation of the principles governing employment status, its significance is in Lord Justice Mummery's postscript.

With regard to those attempting to find a way of giving non-existent rights to agency workers by applying to the courts, he said:

"Some litigants and their advisers and representatives appear to have unrealistic expectations about what courts and tribunals can legitimately do to remedy their grievance that the statutory right not to be unfairly dismissed was confined by Parliament to workers who have a contract of service with the respondent...Courts and tribunals... are not architects of economic and social policy. As they must operate within the legal architecture created by others, they cannot confer the right not to be unfairly dismissed on a worker who is without a contract of employment."

His comments also included implied criticism of the government:

"The courts and tribunals are fully aware of the current controversy about the absence of job protection for agency workers, who do not have an express or implied contract of employment. A [2007] Private Members' Bill... was doomed to failure for lack of support from the Government and failed to get a reading. There is no current government proposal to introduce legislation giving agency workers similar rights to those enjoyed by employees."

Despite these comments, Lord Justice Mummery stated that "it is not for [the courts and tribunals] to express views about a change or to initiate change." Rather, it is "a matter of controversial social and economic policy for debate in and decision by Parliament informed by discussions between the interested parties - the Department for Business and Enterprise, the TUC, the CBI and other employers' organisations and the European institutions and governments of member states."

He suggested, therefore, that "the increasing amounts of money, time and effort spent on litigating this issue in tribunals and on appeals might in some cases be invested more productively in making representations to and through bodies which can pursue the debate on policy or even reform the law."

There was also some advice for employers. After describing the move towards a two-tier workforce, "one tier enjoying significant statutory protection, the other tier in a legal no man's land being neither employed nor self employed, vulnerable, but enjoying little or no protection", he commented that "there is, however, nothing to prevent wise employers from recognising that their long term interests may be better served by treating their entire workforce in a responsible and considerate way than by insisting on the strict letter of the law."

For details of a new Private Members' Bill with measures to protect agency workers, currently before Parliament, see the separate item in this newsletter.

...UK Payroll News - Latest

Source:
James v London Borough of Greenwich

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