urgent information required regarding employment law?

Question

I am under the impression that if you have worked for a company via agency for a period before being taken on full time by the same company your previous employment period is coupled with your new period for redundancy and payment procedures please advise asap thanks for attention

Answer 1

The orthodox answer to the question posed is that an agency worker is not an employee of anyone. He cannot be an employee of the agency: as the agency does not exercise any control over his work, indeed often has virtually nothing to do with him beyond paying him, and; as (in most cases), there is no “mutuality of obligation” with the agency – no obligation to provide work in return for an obligation to do work. He cannot be an employee of the end-user since it does not pay him directly (the end-user pays the agency, which takes its ‘cut’ before paying the worker) and has no contract with him. Because of the lack of a contract with the end-user, he is not even the end-user’s “worker” (ERA s. 230(3)): see, e.g. Douglas v Birmingham City Council & others [2003] All ER (D) 329 (Jul).

The fact that he is not an employee means that the he lacks many employment rights, including the right to bring an unfair dismissal claim, and accordingly has no redundency rights either.

The Court of Appeal has suggested that, in certain circumstances, an implied contract will arise between the agency worker and the end-user. This was seized upon by the majority of a differently constituted Court of Appeal in Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358, who decided (in effect) that in most cases where the individual has been engaged through an agency for more than one year, he will be the end-user’s employee and will not be the agency’s employee.

This however, has not been followed to any great extent, and is probably an exception to the usual rule that an agency worker is not an employee of anyone and can therefore claim no employment related benefits. Muscat was described as an 'unusual case' in craigie v London Borough of Haringey [2007]. the EAT said that it would take an Act of Parliament to change the status of long term agency workers.

Answer 2

I think it depends on if you joined the company with the definite and agreed intention of becoming a full time employee.
I notice that a lot of companies are taking on contractors for a three month contract as a way of getting around the usual three month probation period where you would definitley be viewed as an employee and entitled to any payments in the event of termination of employment.
This relieves the company of NI payments, you are an expense similar to a fax machine, but on the plus side, for your probation period you should have earned more money, taxable at 20% via dividends. You may also be seen as an employee if you did not opt out of the employment legislation cover. This measure was brought in shortly after IR35 tax regulation reared it's head and was supposed to show more as a company providing a service, risking profits etc, than a disguised employee simply taking a wad of cash and paying less tax. If in doubt, see the Citizens Advice Bureau or your solicitor who should be able to recommend a suitable source of information

Answer 3

No, I believe you are considered a new employee as far as the company is concerened. Even though you worked at that company's place of business, you actually were considered the agency's employee. Once the company hires you as their own employee, you start from scratch as if you're a new employee to them. I'm guessing if you had insurance, it was offered by the agency and not the company, or when you earned vacation time it was through the agency and not the company...see where I'm going with this? You weren't the company's employee, you were the agency's. Being hired full-time by the company makes you a new employee to them.

I'm only making an assumption about your area, but I know that's how it works in my neck of the woods.

Answer 4

Not legally i'm afraid. Originally your contract was with your agency. You were employed by the agency for that period,not your current employers. You did not have a direct contact with your current employers at this date.
I assume when you were taken on full time that you signed a contact of employment with your current employers and at that point you were no longer employed via your agency. It is the date of this contract of employment that redundancy and payment procedures will be based

Answer 5

The decision in Dacas v Brook Street Bureau that Mrs Dacas, a temp cleaner who had worked for Wandsworth Council for four years, was an employee of Brook Street Bureau has been overturned by the Court of Appeal—who said she might be an employee of the Council. Traditionally, agency temps are considered to be employed by neither the agency nor the organisation where they are placed. The employment tribunal decision in Dacas said she was an employee of neither Brook Street Bureau nor the Council, then the employment appeal tribunal said that she was an employee of the agency. But in March 2004 the Court of Appeal said that an implied contract of employment may be created between the worker and the end-user (in this case Wandsworth Council), in particular where the relationship lasts at least one year.

These principles were confirmed by the Court of Appeal in Cable & Wireless v Muscat on 9 March 2006.

In a similar case in April 2003, involving an agency worker who had worked for Reuters for five years, the Court of Appeal said that tribunals hearing such cases must look at the reality of the situation, to determine whether an implied contract has evolved between the end-user and the individual. This case was sent back to the employment tribunal.

After the Dacas decision the employment status of agency temps who had worked for an organisation for less than a year remained unclear. But in the Reuters case the Court of Appeal made clear that the creation of an implied contract does not depend on length of service.

In RNLI v Bushaway, Bushaway worked as an agency temp for five months then was appointed to the same post on a permanent basis. After 11 months in the permanent post she resigned and claimed constructive unfair dismissal. The employment appeal tribunal ruled on 22 April 2005 that she was employed by RNLI while she was an agency temp, and she thus had more than one year continuous service and could bring her unfair dismissal claim.

See CAB or similar employment specialist!

Answer 6

I assume you're asking about UK employment law, as your question is on the UK site.

It would depend on the company, but, as far as I am aware, they are required by law to do so. When working for them via the agency, you were, in effect, employed by the agency (I know it's semantics, but this is how they could see things). If in doubt, contact your local CAB or a solicitor (many give free advice on employment issues).

Good luck

Answer 7

Contact your state for rules there. I think employment rules are highly deregulated these days. Fire at will, lack of pension or insurance coverage is seen as desirable by most states. Companies have stronger rights to make their own rules.

Answer 8

It depends on the company's policy. This isn't a legal question, it's a policy question.

Answer 9

Hi

I am not sure if this will help. Hope it will.

http://www.direct.gov.uk/en/Employment/Employees/index.htm