| Commentary

(3) As against the end-user

| Commentary

(3)     As against the end-user

If the position vis-à-vis the agency is complex, the position vis-à-vis the client or 'end-user' has caused even more concern. An agency worker in the traditional role of a 'temp' is clearly not the employee of the end user, but cases arise where the agency is used as little more than a recruiter and then has little contact with the individual (still less any control); the individual works for that one end user for a significant length of time, is administered and supervised by the end user for all practical purposes, and eventually becomes indistinguishable from a direct employee. Does that individual transmute over time into the end user's employee (eg for the purposes of an unfair dismissal action when finally terminated)? The eventual answer to this was that such an implied contract will only arise if it is 'necessary' in order to explain the relationship at all, and in practice (where the agency arrangements remain in force, if only as a conduit for payment of the individual) this means that such a contractual relationship with the end user will be rare. However, that position was only reached after seven years of uncertainty, when it appeared that an implied contract might indeed be a distinct possibility, and it was brought about by a quite remarkable volte face by the Court of Appeal in James v Greenwich BC [2008] EWCA Civ 35, [2008] IRLR 302.

The uncertainty

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