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To what extent is an bureau worker an employee of the bureau who assigns the work?
This inquiry requires a finding of the issues: how is an employee defined, can an bureau worker be an employee and if so, who are they employed by.
Who is an bureau worker?
In general, the usage of temping bureaus by companies ( “clients” ) has immensely expanded at great velocity. It is likely that in the current economic clime and with many persons being made redundant, the usage of temporary/agency workers will increase more.
UK statute law attempts a definition at what constitutes an bureau worker is the National Minimum Wage Act 1998. Such a worker is basically “ … supplied by a individual ( ‘the agent’ ) to make work for another ( ‘the principal’ ) under a contract or other agreements made between the agent and the principal…” .
The Employment Agencies Act 1973 and Conduct of Employment Agencies and Employment Business Regulations 2003 ( SI 2003/3319 ) which regulates bureaus does non even refer to the legal relationship between the worker and the bureau. As such, we should mention to the common jurisprudence for more aid.
Can an bureau worker be an employee?
The employment relationship is traditionally seen as a relationship between employer and employee giving rise to a contract of employment [ 1 ] .
The Employment Rights Act 1996 ( “ERA” ) is the chief beginning for employment jurisprudence. It defines an employee as an person who enters into or works under a contract of employment [ 2 ] . The contract of employment is “a contract of service or apprenticeship, whether express or implied, and ( if it is express ) whether unwritten or in composing. [ 3 ] The other chief beginning of employment rights can be found in the Trade Union and Labour Relations ( Consolidation ) Act 1992 ( “TULR ( C ) A” ) . The TULR ( C ) A provides a similar definition of both employees and contracts of employment.
As such, the jurisprudence in this country was developed chiefly through the common jurisprudence guaranting the flexibleness that was required. If the definition is every bit stiff as the ERA and TULR ( C ) A suggests it should be, certain workers such as bureau workers would non bask certain employment rights on the footing that there is no contract of employment [ 4 ] . However an absence of an employment contract does non contradict an employment relationship.
There are assorted trials developed through instance jurisprudence which have identified the employment relationship ( contract of service ) as opposed to that of an independent contractor ( contract for services ) [ 5 ] .
The chief trials are the ‘control test’ i.e. is the work of the worker built-in to the concern or an accoutrement, ‘economic world test’ which is how far is the worker in concern of their ain history which looks at grounds of self-employment as opposed to employment. There is besides a trial of mutualness of duties which looks at the committedness to keep the employment relationship over a period of clip and the promises of future public presentation. Over the old ages, it has become established that there is a ‘multiple test’ which takes into history all of these trials. [ 6 ] This multiple trial now the chief authorization is Mackenna J in theReady Mixed Concrete[ 7 ] instance for the definition of a contract of service. Basically, the worker provides his work and accomplishment for wage, is capable to their control to do them the maestro and other contract commissariats are consistent with a contract of service. [ 8 ] These factors are non deciding and Lord Wright found that other factors include ownership of tools, opportunity of net income and hazard of loss. [ 9 ]
To contextualise these ‘tests’ , in order to find if an bureau worker has a contract of service, inquiries such as who pays the worker and whether the bureau or the client controls their twenty-four hours to twenty-four hours work are really much key to this issue.
Agency workers may be found to be employees and it is a inquiry of fact and grade. InDacas V Brook Street2004 the Court of Appeal held that the bureau worker was non an employee of Brook Street bureau.
However, interestingly, LJ Mummery mentioned obiter pronouncement that whilst Mrs Dacas had a contract, though non for services with the bureau, that she had an implied contract for services with the client and was hence an employee of the client. The grade of control by the client over Mrs Dacas was important whilst she worked for them for four old ages and the client was obliged to pay the bureau and Mrs Dacas was obliged to follow the client’s regulations at work. As such the being of the single contracts, implied or express, between Mrs Dacas and the client, the client and the bureau and the bureau and Mrs Dacas provided a continuity in the common duties. As such, there was a suggestion that the worker could efficaciously be an employee of both the bureau and the client. However, the Court of Appeal were non in a place to find the inquiry of whether the client was the employer and that needed to be remitted back to the employment courts for a determination of fact. This was non possible in this instance as the client was non joined as a suspect to the claim.
Similarly, inBunce V Postworth[ 2005 ] it was that the bureau worker was non the employee of the bureau due to the deficiency of control by the bureau. Harmonizing to Keane LJ, finding of the issue came down to who had the power to command what the worker does and how he does it. [ 10 ]
More late, it has been held that a worker can be an employee of the bureau. InConsistent Group Ltd v Kalwak( 2007 ) it was held that if there was a sufficient grade of control the worker could be deemed an employee of the agent.
As such which factors need to be taken in consideration will depend slightly on the type of employment and the industry and each instance hence needs to be considered on its single facts.
It can hence be seen that late it has been found that an bureau worker can be an employee. However, a form has developed in the instance jurisprudence bespeaking that an bureau worker is more likely to be deemed an employee of the client non the bureau. This is merely because the relationship between the worker and the client of course leads to the client holding more grade of control by the client over how the work is done. Whilst payment for the work done is typically provided by the agent, as LJ Mummery referred to obita inDacas, the client is basically providing payment even though it is via the bureau. Cases such asConsistent Group2007 show that the chief issue is non payment of the work but the grade of control which determines the employment relationship.
However, elucidation is greatly needed in this country either through legislative act or from the House of Lords. At present, there is no cover jurisprudence on whether an bureau worker is an employee of the bureau or client and each instance turns on its single facts. [ 11 ]
Importance of the inquiry?
The inquiry is an highly of import one peculiarly in visible radiation of the proposed Agency Workers Directive COD 2002/0149. The intent is to seek and harmonize employment Torahs such as wage of employees and bureau workers. It is improbable that it will be in force until 2010 as it faces resistance by the authorities. This can be seen in the fact that it was foremost proposed in 2002. [ 12 ]
The authorities is concerned that if with bureau workers deriving such rights, the growing of the occupations will be threatened as the advantages of such flexible working will no longer be seen. “Employers” will therefore enforce more and more conditions on such workers. There would besides be a heavy cost load for industry and little concerns. [ 13 ]
Therefore until bureau workers have such employment rights through this statute law they should convey any possible claims against both the bureau and the client. This is because rather merely, the extent to which an bureau worker is an employee of an bureau or a client or an employee at all is non clear and is a fact happening exercising.
Duddington, J ( 2007 )Employment Law, 2nd Ed. , Pearson Education Limited, England
Lunney, M and Oliphant, K ( 2000 )Tort Law Text and Materials, Oxford University Press, Oxford
Oliver, T and Dingemans QC, J, Employer’s Liability Cases ( 2003 ) Reed Elsevier, UK
Painter, R and Holmes, A ( 2006 )Cases and Materials on Employment Law, Oxford University Press, New York
Taylor, S and Emir, A ( 2006 )Employment Law, An Introduction, Oxford University Press, Oxford
ProposedAgency Workers Directive COD 2002/0149
Behavior of Employment Agencies and Employment Business Regulations 2003 ( SI 2003/3319 )
Employment Agencies Act 1973
Employment Rights Act 1996
National Minimum Wage Act 1998
Trade Union and Labour Relations ( Consolidation ) Act 1992
Bunce 5 Postworth Ltd t/a Sky Blue[ 2005 ] IRLR 557, CA
Consistent Group Ltd v Kalwak[ 2007 ] IRLR 560
Dacas V Brook StreetAgency[ 2004 ] EWCA Civ 217
Montreal Locomotive Works v Montreal and A-G for Canada[ 1947 ] 1 DLR 161
Ready Mixed Concrete ( South East ) Ltd 5 Minister of Pensions and National Insurance[ 1968 ] 2 QB 497, QBD
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