Employment Appeal Tribunal
Successful defence of appeal by a claimant against tribunal decision that there was no implied contract between her and the end user. The claimant had provided her services to the respondent for several years but was employed by the agency on an express contract of employment. The end user had terminated the claimant's engagement for alleged misconduct. Ultimately this had led the agency to terminate the contract of employment between it and the claimant. The agency had paid the claimant a redundancy payment and pay in lieu of notice. The claimant accepted that she had a genuine contract of employment with the agency but contended that she also had a parallel, implied contract of employment with the end user, and that it was necessary to imply such a contract so that she could have effective redress (recognising that any claim against the agency was unlikely to succeed or to be worth very much). The tribunal found it a difficult case and was troubled by it, but concluded that it was not necessary in these circumstances to imply a contract with the end user. The claimant appealed and contended that the tribunal's decision was perverse. In a starred judgment the EAT (HHJ Peter Clark) held that it would not depart from the long established principle that "a servant cannot have two masters". The EAT also accepted submissions based on The Aramis [1989] 1 Lloyd's Rep 213 that in order to imply a contract from conduct, it is necessary to show that the conduct of the parties was consistent only with there being a contract of service between them. That was not the case here as the conduct was entirely consistent with the written contracts between the parties.
[2007] ICR 616, [2007] IRLR 175
AGENCY WORKERS, EMPLOYMENT AGENCIES, EMPLOYMENT STATUS, IMPLIED CONTRACTS, UNFAIR DISMISSAL, TRIPARTITE RELATIONSHIP
