Muschett v HM Prison Service  EWCA Civ 25
In a further blow to agency workers’ hopes of bringing claims against end-users, the Court of Appeal has held that, in order to bring a discrimination claim against an end-user, the claimant will need to show that it is “necessary” to imply either a contract of employment or a contract to provide services personally between the claimant and the end-user.
M worked as a temporary agency worker for HM Prison Service (HMPS) and had applied for permanent employment. HMPS terminated the assignment following M’s involvement in incidents at the prison and M brought claims of sex, race and religious discrimination against both HMPS and the agency.
M was found not to be an employee of the agency, but was permitted to appeal to the Court of Appeal in respect of whether he was an employee of HMPS.
In order for M’s discrimination claim against HMPS to proceed, he had to show that there was an implied employment contract between him and HMPS. He was not able to use the “contractor” provisions in discrimination statutes because these required an employment relationship between M and the agency.
The definition of “employment” in discrimination statutes is wider than that for unfair dismissal purposes. As well as encompassing employment under a contract of employment it also includes a “contract personally to execute any work or labour”.
In the James v London Borough of Greenwich case (the leading judgment on the employment status of agency workers), the Court of Appeal found that while, in principle, an employment contract could be implied between an agency worker and an end-user, in order for this to happen, “there must subsequent to the [agency] relationship commencing be some words or conduct which entitle the Tribunal to conclude that the agency arrangements no longer dictate or accurately reflect how the work is actuaually being performed, and that the reality of the relationship is only consistent with the implication of the [employment] contract”. This is a very high hurdle for agency workers to meet.
The question in the Muschett case is whether this hurdle is the same when implying a contract personally to execute any work or labour (the extended discrimination test).
Court of Appeal Decision
The Court of Appeal held that a contract to provide services personally would only be implied where it was “necessary”.
In M’s situation, the Court held that there was no actual contract to perform services personally between M and HMPS because M could end his engagement at any time by informing the agency, as could HMPS.
Moreover, the Court held that there was nothing in the evidence that necessitated the implication of a contractual relationship between M and HMPS and “nothing less than necessity will do”. M’s discrimination claim, therefore, failed.
What this means in practice
This case is further evidence of the difficulties that workers in tripartite agency relationships may face in bringing claims against either or both their agencies and end-users, and provides further comfort to end-users that they are currently well protected by the law in respect of any employment-related claims that agency workers may bring against them.
The Temporary Agency Workers Regulations are currently before Parliament and are due to come into force in 2011. While these address and may radically improve the basic working conditions of agency workers (entitlement to breaks, pay, overtime, holiday etc), as currently drafted, they do not provide any additional protection against dismissal or discrimination by the end-user.