Ever wonder if your temp thinks they’re perm?
Organisations have become increasingly nervous in recent years when hiring temporary workers, mainly due to un-founded concerns that they will unwittingly end up as their permanent employer.
However, a recent Court of Appeal decision has brought some 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 Alstom'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 five day week (Monday to Friday)
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 Alstom (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 obliged to turn up for work, and was not at liberty 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 judgement may help restore employer confidence in hiring temporary staff, as it provides more clarity around the temp/perm employee debate. 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.
The case 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, it doesn’t mean it is.
However we would always recommend a cautious approach. Clients should avoid taking control of the administrative management of temporary workers and leave that to the supplying agency. That way there will be less reason for a temporary worker to feel s/he has become integrated.
If you’re considering hiring a temporary worker or if you’ve got any queries about temps, contact your Michael Page consultant.
