Who employs your agency staff?

With summer arriving, and employees enjoying their annual holidays, it is common practice for businesses to use agency staff, temporarily to fill the places of absentees.

Such agency staff members often stay longer than was initially expected, whether covering additional periods of absence or helping with increased work loads. The longer such individuals remain, the more likely it is that they will be found to be employed by the businesses using them (the “end-user”), rather than by the agencies which originally supplied them.

This may mean that, on ending the employment, the end-user finds itself liable for unfair dismissal, not realising that the individual concerned was not as disposable as it anticipated.

In one case, the individual arrived as a temp - and stayed for five years. Throughout that period, time sheets were sent to the agency, which paid the individual’s wages, but the end-user was ultimately held to be the employer.

A recent decision in the Court of Appeal means that Employment Tribunals (and the Employment Appeal Tribunal) must now always consider the possibility that an agency- supplied worker should be treated as an employee of the end-user.

Expressly stating that the individual is not an employee of the end-user will be indecisive. The Employment Tribunal must often look behind any written contract, to see what was the true situation.

Such decisions have implications for those who initially work for an agency, but are later taken on by the end-user on an (effectively) permanent basis. The period of agency employment may then be held to be part of the individual’s period of continuous service with the end-user.

This happened in a 2005 Employment Appeal Tribunal case, where the employee was held to be protected against unfair dismissal, once she had worked for a year in the same end-user business, despite the fact that she had spent part of that year working in that business, through an agency, on a supposedly temporary basis.