James v Greenwich BC [2008] EWCA Civ 35

• Plaintiff had worked full time for the council and then ceased working for a short while.

• She subsequently returned to working at the council through an outside agency.

  • There was no direct contract between her and the council but she did sign a Temporary Workers Agreement with the agency.

  • The agency, through this agreement, attempted to establish a contract for services as did the agreement signed by the agency and the council, with the agency being responsible for the payment of the workers’ salaries and any national insurance or tax.

  • Normal council procedures, such as disciplinary and grievance processes, did not apply to Plaintiff.

  • In addition she was not paid any holiday or sick pay. Any arrangements in this respect were made by the agency.

• CA held that Plaintiff wasn’t an employee of the council. 

Mummery LJ

• In cases involving agency workers it was unnecessary to consider whether the irreducible minimum of mutual obligations existed, but rather the correct approach was to ask whether it was necessary, in the tripartite setting of worker, employment agency and end-user, to imply a contract of service between the worker and the end-user to explain the provision of work by the worker to the end-user or the end-user's payment of the worker via the agency.

• This would be done based on the ordinary principles of contract law, implied terms and, in “extreme” cases, exposing sham agreements.