Employment Update June 2007
Employment Status of Agency Workers
In two recent cases, the Employment Appeal Tribunal (EAT) has clarified the law relating to the employment status of agency workers.
As a result of a series of cases in the last couple of years, it had been unclear the circumstances in which an employment contract might be implied between an agency worker and an end user.
In two recent cases, Heatherwood & Wexham Park Hospitals NHS Trust –v- Kulubowila & Ors and Astbury v Gist Limited, both decided by HHJ Peter Clark, the EAT has confirmed that:
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Each case will be decided on its own facts, but it will be difficult for a claimant to establish that there was an implied contract of employment with an end user – the test is one of necessity;
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Where there is a clear triangular arrangement between an agency, an agency worker and an end user, it is not necessary to imply a contract of employment between an agency worker and end user; and
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It is possible for an agency worker to be employed by nobody.
It would now appear that a contract of employment will only be implied between an agency worker and end user in very limited circumstances, for example where the agency worker was originally employed by the end-user and the agency relationship is interposed.
Discrimination on grounds of religion or belief
When the Employment Equality (Religion or Belief) Regulations 2003 were first brought into force, they were stated to apply to "any religion, religious belief, or similar philosophical belief".
The Government has now brought into force amending legislation, so that the regulations now apply to:
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any religion, including a lack of religion; and
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any religious or philosophical belief, including a lack of belief.
This removes doubts and confirms, for example, that atheists and humanists are protected by the regulations.
However, it has still to be confirmed whether the new definition will extend protection to political beliefs, because there is now no requirement for a belief to be similar to a religious belief.
Are part time workers entitled to bank holidays in lieu?
In McMenemy –v- Capita Business Services, the Court of Session has confirmed that part time workers who do not usually work on a Monday are not entitled to a day in lieu in respect of Monday bank holidays.
The exception would be if a full time worker who did not usually work on a Monday was given a day in lieu – in such cases a part time worker would also be entitled to a day in lieu because part time workers cannot be treated less favourably than full time workers.
FOR FURTHER INFORMATION PLEASE CONTACT: ALISON GOW