Employers should be concerned to clarify the terms of the ‘employment’ contract for anyone self employed, since, without such clarity, it can be inferred that such self employed people do in fact take on the rights of ‘regular’ employees.
In this particular case, however, it has swung back the balance in the case of agency workers, which a number of clients will use from time to time.
Mrs James carried out work for Greenwich Council over a period of five years. Her advisers argued that although there was no explicit written contract of employment an ‘implied’ contract of employment had arisen.
The argument was turned down because the essential part - “mutuality of obligation” - between worker and employer had not overridden the agency agreement. Mutuality of obligation means the clear requirement for the worker to carry out tasks as demanded by the employer who in turn will pay the worker for those services.
In this particular case, as in most agency agreements, the company could not insist on a particular worker providing the service and it was also highlighted that just because an agency worker had been working for an extended time with an ‘employer’ it does not mean the implied contract will arise.