Are ‘Casual’ Staff Entitled to Workers’ Rights? Tribunal Gives Guidance

Are so called ‘casual’ staff entitled to the panoply of rights afforded to ‘workers’ by the Employment Rights Act 1996? A tribunal grappled with that vital issue in a case concerning a pipe fitter who found a temporary job through a recruitment agency.

Construction siteThe man began working on a building site after answering an advertisement placed by the agency. After he complained to an Employment Tribunal (ET) that unlawful deductions had been made from his wages, an issue arose as to whether he was a worker for the agency, within the meaning of the Act.

The ET found that he did not meet the statutory definition on the basis that there was no contract between him and the agency and that the agency had not intended to enter into legal relations with him. His working arrangements had been nothing if not casual. The ET noted that he had been paid directly by the site contractor and rejected arguments that the agency’s arrangement with him was a sham.

In upholding the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET had made an error of law. On the basis of correspondence between him and the agency, there clearly was some kind of agreement between them. The agency had advertised the position and had sent the man a text confirming the location where he would work, the name of the site contractor and details as to who he could contact for payment purposes.

The context was a commercial one of an individual seeking work for which he would expect to be remunerated. The man would also have envisaged that, if he was not paid for work done, he would have some legal recourse. In those circumstances, the ET was wrong to find that there was no intention to create legal relations. The case was remitted to a differently constituted ET for consideration of whether the man was a worker for the agency, for the site contractor, or for both.

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