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Annie Hayes

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Employment law briefing: Implied contracts of employment … continued

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Landmark decision?
Employers and HR professionals have been following this case with interest, and indeed if it had been decided that Dacas was wrong, it would have been a fundamental blow to agency workers attempting to assert employment status. However, employers will be relieved to know the dismissal of the appeal does not mean that now every agency worker will be regarded as an employee of the end user.

The appeal failed and Mr Muscat was found to be an employee of the company because of the facts of the case. In particular the Court of Appeal had regard to the fact that he had previously been an employee of the business and he had continued to carry out the same function under the agency arrangement as he had done as an employee.

The challenge to Dacas was not accepted. The Court of Appeal confirmed that the guidance given in that case was not binding but was appropriate to consider. A contract of employment could be implied in some cases with an end user taking into account all the circumstances. However it considered that in many cases a worker in a triangular relationship will be found not to be an employee of the end user.

It is still the case that, depending on the specific circumstances, Tribunals may find that a worker is an independent contractor, an agency employee or an employee of the end user. Unfortunately for HR staff, this means disputes relating to employment status are to continue as the issue in each case will very much depend upon the facts.

Guy Guinan is an employment partner at Halliwells.

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Annie Hayes

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