Court of Appeal
The employment tribunal had to consider on the whole of the evidence whether the legal consequences of the arrangements between worker, employment agency and end user included an implied contract of employment between the worker and the end user. The guidance given by the majority of the Court of Appeal in Brook Street Bureau (UK) Ltd v Dacas (2004) EWCA Civ 217, (2004) ICR 1437 was correct.
HELD: In a typical "triangular" case, the employment tribunal had to consider on the whole of the evidence whether the legal consequences of the arrangements between worker, employment agency and end user included an implied contract of employment between the worker and the end user, Brook Street Bureau (UK) Ltd v Dacas (2004) EWCA Civ 217 , (2004) ICR 1437 applied. The requirement for mutuality of obligation could be satisfied where the obligation to remunerate did not lie on the person having control of the worker's work so long as the remuneration was being provided by the employer albeit indirectly. Dacas was not authority for the proposition that in the circumstances there must be a finding of an implied employment contract: it only gave guidance to employment tribunals to consider the possibility that an implied contract might exist. That guidance was correct. The contract for services between M's company and the agency did not preclude the existence of an implied contract between M and C, Stevedoring and Haulage Services Ltd v Fuller (2001) EWCA Civ 651 , (2001) EWCA Civ 651 distinguished. In the instant case it was possible to infer a contract of employment by examining the conduct of M and C. The case was particularly clear because of the existence of a contract of employment between M and E and the transfer of that contract on the takeover. It was necessary to infer the existence of an employment contract in order to give business reality to the arrangements in operation and to create enforceable obligations in circumstances where one would expect to find that they existed, The Aramis Independent, December 9, 1988 applied. The decision of the employment tribunal had been correct according to established law.
 ICR 975;  IRLR 355
CONTRACT OF EMPLOYMENT : EMPLOYMENT AGENCIES : EMPLOYMENT STATUS : IMPLIED CONTRACTS : UNFAIR DISMISSAL
William Meade (Senior Clerk)