Ever wonder whether you're a permanent employee?
A recent Court of Appeal decision has brought further clarity to the difficult issue of whether temporary workers ever have the same rights as permanent employees.
In November 2010 the Court of Appeal found in the case of Tilson v Alstom Transport that even full integration into the hirer's organisation will not necessarily mean an employee/employer relationship exists between a temporary worker supplied by recruitment agency and the hiring client, whatever it may feel like to the temporary worker.
Mr Tilson was fully integrated into Alstrom's business even though there was no written agreement between him and Alstom. However, when Alstom terminated his services, Mr Tilson claimed that there was an implied contract between them; that he was an employee of the company and that he could therefore bring a claim for unfair dismissal.
Mr Tilson felt that he was fully integrated into Alstom's business because he:
- Reported directly to a line manager at Alstom
- Had Alstom employees reporting to him
- Worked a consistent, standard 5 day week (Monday to Friday) each week
- Was authorised by his line manager to recruit, discipline and dismiss permanent employees
- Was responsible for the business and operational aspects of his job
- Signed time sheets for permanent employees
- Ordered materials for and on behalf of Alstom
- Had represented Alstom in negotiating contracts
- Was provided with company equipment by Alstrom (company telephone, computer and network access)
- Had to have the agreement of his line manager before taking annual leave
- Had full access to technical information and reports
- Was not at liberty not to turn up to work or to replace himself with a substitute
The Court of Appeal ruled that there was no direct contractual relationship between Alstom and Mr Tilson. Consequently Mr Tilson could not be an employee of Alstom and could not bring a claim for unfair dismissal against Alstom. Essentially it was found that the degree of a worker's integration carries little, if any, weight when considering whether there is an implied contract in place between the temporary worker and client. Indeed, in most cases it is quite unrealistic for the worker to provide any satisfactory service to the client without being integrated into the mainstream business.
What does this mean for you?
This may appear to be more beneficial to recruitment agencies and organisations than to you as a temporary worker, but there is in fact a win in this for everyone. The UK temporary workforce is a significant part of the UK labour market and the flexibility it provides is essential to UK plc and the UK economy.
In recent years clients have been increasingly nervous to use temporary workers because of the risk of unwittingly ending up as their permanent employer. Such nervousness does not serve you, and the temporary workforce in general, well. This case however provides further clarity on the approach of the courts and tribunals, which can only be helpful. It should help restore client hirer confidence in the temporary worker model and serve as a reminder to all that, just because a relationship looks and feels like an employment relationship, does not mean that it is.
If you have any queries regarding temping, contact your Michael Page consultant.
