|
The appeal in the case of James v London Borough of Greenwich focused on employment rights rather than tax law, as Ms Merana James argued that she was entitled to unfair dismissal after the Council terminated her services after a period of sick leave.
This was an appeal against a decision of an Employment Tribunal, which was subsequently upheld by an Employment Appeal Tribunal. The issue before Lord Justice Mummery, Lord Justice Thomas and Lord Justice Lloyd was whether the tribunals 'erred in law' in their decision that Merana James, was not an employee of the respondent Greenwich Council, for which, through an employment agency, she worked for a period of three years prior to the Council's decision to replace her with another worker supplied by the agency.
Background
In 1997 Ms James began to work on a full time basis for the Council providing support work on behalf of the Council's Asylum Seekers Team. She helped at a hostel which provided semi-independent accommodation for unaccompanied under-18 year old asylum seekers. She said that she was placed on a permanent rota to provide continuous 24 hour staff cover at the hostel and that she was a permanent, as distinct from part-time, member of staff. Later that year she stopped working for the Council and spent time abroad.
In September 2001 Ms James began an engagement with the Council through the Greenwich Social and Care Staff Agency (Greenwich Nursing Agency), an employment agency which provided her services to the Council.
According to the Council's revised Code of Practice on the Recruitment and Selection of Employees it did not, as a general principle, use the services of employment agencies to fill permanent or temporary vacancies because of the costs involved and the inability to control either the agencies' recruiting practices or the terms of employment they offer their staff, though occasionally the needs of the service and/or lack of suitable potential employees might result in a particular service area need to use agency staff.
The Council conceded that, while Ms James was undertaking work for the Council as a Housing Support Worker, she was subjected to a degree of control consistent with a contract of employment. Ms James explained in her evidence that the Council, not the employment agency, arranged all her instructions, orders and her working conditions, provided the materials used in her work and organised the procedures followed by her. She wore a staff badge bearing the Greenwich Council logo with "Social Services" written under her name. But, the Council contended, there was an absence of that mutuality of obligations which is required to found a contract of employment between her and the Council.
In 2003 Ms James changed agencies to BS Project Services Limited, as they offered a higher rate of pay. According to the terms of the agreement between the agency and Ms James, she contracted in the capacity of a self-employed worker in relation to each assignment undertaken by her. She was not obliged to consider any assignment offered to her and it was stated that the terms constituted a "contract of services between BS Social Care and the Temporary Worker" and did not give rise to a contract of employment between them or between the Temporary Worker and the client.
She was paid by the agency on receipt of weekly timesheets. The Council's Disciplinary Procedure and Grievance Policy did not apply to Ms James and that she was not entitled to the Council's sick pay or holiday pay provisions applicable to employees.
In August and September 2004 she was absent from work through sickness and did not receive sick pay from the Council. While she was away, her work was undertaken by another worker provided by BS Project Services.
When she returned to work , another agency worker had arrived to cover the same shifts. She argued that, as she found herself without a job and without a reference, it was hard to obtain another job.
In November 2004 she presented her complaint of unfair dismissal against the Council. BS Project Services was later joined as a respondent, though it was not contended that she was an employee of the agency. She claimed that she was dismissed on the termination of her working arrangement with the Council and that dismissal occurred when she had raised health and safety issues.
Advertisement 
The case went to an Employment Tribunal which concluded in circumstances where there was no obligation upon the claimant to provide her services to Greenwich Council and there was no obligation on the part of Greenwich Council to provide the claimant with work, there was an absence of 'the irreducible minimum of mutual obligation' necessary to create a contract of service. The Tribunal did not consider that working under Greenwich Council's control was relevant in circumstances when there was the absence of mutuality of obligation necessary to found a contractual relationship.
The Employment Appeal Tribunal supported the decision and found no error in law. It deciced that: 'Although the ET had focused on the absence of the mutuality of obligations, it could simply have said that there was no necessity to imply a contract of employment in this case. The mere passage of time was not sufficient to require such an implication to be made.'
Decision
The Court of Appeal supported the earlier decisions and found no error in law had been made in arriving at them. It found that the Tribunal was entitled to conclude that Ms James was not an employee of the Council because there was no express or implied contractual relationship between her and the Council. Her only express contractual relationship was with the employment agency, as she recognised when she changed agencies rather then employers in order to obtain a higher wage. The Council's only express contractual relationship was also with the agency. There were no grounds for treating the express contracts as other than genuine contracts.
It decided that the Tribunal was not 'perverse' in holding that it was unnecessary to imply a third contract between Ms James and the Council. "What Ms James did and what the Council did were fully explained in this case by the express contracts into which she and the Council had entered with the employment agency. The Council provided work to Ms James for several years, but the ET found that it was not under any implied obligation to do so. The mere passage of time did not generate a legal obligation on the part of the Council to provide her with work any more than it generated a legal obligation on her to do the work. The provision of work by the Council, its payments to the employment agency and the performance of work by Ms James were all explained in this case by their respective express contracts with the employment agency, so that it was not necessary to imply the existence of another contract in order to give business reality to the relationship between the parties."
The full decision of the Court of Appeal is available here - Bailii.
--
If you wish to comment on this article, please log in and use the Reply button below. Registering is free and easy - see 'Join Shout99'.
-
Susie Hughes © Shout99 2008
|
