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Employment status and agency workers

The recent case of Smith V Carillion (JM) Ltd has considered whether it is necessary to imply a contract between an agency worker and an end-user where factors point to a contract as the underlying reality.


The Claimant, Mr Smith, was an agency worker and trade union activist who had worked in the construction industry for over twenty years. Mr Smith had provided services for Carillion (JM) Ltd through an employment agency. However, after 2001 he was unable to obtain employment.

In 2009 Mr Smith discovered information about him was contained in a database of workers who were considered to cause problems for employers in the industry. Approximately 40 companies in the industry were able to access the database.

1. Mr Smith brought claims against Carillion claiming that the company had subjected him to detrimental treatment by virtue of his trade union and health and safety activities.
Carillion accepted that it had provided information about Mr Smith to the database and that in providing that information, had caused him a detriment.

2 In order for Mr Smith to be successful with the claims, he needed to establish that he was either a “worker” or “employee” of Carllion. The Tribunal therefore, in the first instance, had to consider the facts and determine Mr Smith’s employment status.


The Employment Tribunal dismissed Mr Smith’s claims on the basis that his services had been provided to Carillion by an employment agency and he had therefore not established that he had been employed under a contract with the company.

Mr Smith appealed the decision; one of his points of appeal being that the Tribunal had not properly analysed the alleged contracts and in doing that, failed to come to the conclusion they should have, that he was a worker.

The EAT responded as follows;

The Tribunal had not misdirected itself on the question of whether there had been a contract between Mr Smith and Carillion. During the Tribunal hearing Mr Smith had conceded himself that there was no express contract between him and the company, he had also stated that he was an agency worker.

The EAT further stated “It was not unusual for an agency worker to be integrated into the business of the end-user. It would often be impossible for the worker to give satisfactory service without being integrated into the business.”

On the basis of the above the EAT found that the Tribunal had reached a sustainable conclusion which was consistent with the evidence.

The EAT therefore upheld the decision of the Tribunal and Mr Smith’s appeal was dismissed.

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