Who is that ethereal figure by the photocopier? A worker who never registers on the employee head count. I write, of course, of that ghost at the employment rights banquet: the agency worker. The agency worker has become a common feature of many work places. Inevitably, therefore, the issue of their employment rights has been the subject of much litigation before employment tribunals. In particular, the issue of whether they enjoy the right not to be unfairly dismissed by the end user of their services when the working relationship has continued for more than a year has been a vexed one. A number of decisions of the Court of Appeal and the Employment Appeal Tribunal (EAT) have grappled with the question.
Expectations therefore ran high for a definitive ruling from the Court of Appeal on the status of agency workers when it handed down judgment in the case of James v London Borough of Greenwich last month. The judgment, however, while reasserting a contractual orthodoxy on the issue, falls short of a prescriptive conclusion which gives a definitive answer in every case and leaves the question to be determined by the tribunal on the facts of each case.
