James v London Borough of Greenwich [2008] EWCA Civ 35, [2008] All ER (D) 54 (Feb)
The question of whether or not an “agency worker” is an employee of an end user must be decided in accordance with common law principles of
implied contract and, in some very extreme cases, by exposing sham arrangements.
It is wrong to regard all “agency workers” as self-employed temporary workers outside the protection of the Employment Rights Act 1996 (ERA 1996); however, recent case law does not entitle all “agency workers” to argue successfully that they should all be treated as employees in disguise.
There is a wide spectrum of factual situations. Labels are not a substitute for legal analysis of the evidence. In many cases agency workers will fall outside the scope of the protection of ERA 1996 because neither the workers nor the end users were in any kind of express contractual relationship with each other and it is not necessary to imply one to explain the work undertaken by the worker for the end user.
