Secret agent

Wood Green Engineering v Robinson

Following an earlier decision of the Court of Appeal, it looked as though tribunals might imply more often that there were contracts between temporary workers and “end users”.

In Wood Green Engineering v Robinson, however, the Employment Appeal Tribunal (EAT) said that tribunals should only imply contracts where it was necessary to do so.

Basic facts

Ms Robinson worked for the company as a part time receptionist for a number of years, during which time she was employed through an agency, HFA Ltd, an offshoot of the company itself.

During that time, she was not allowed to work for anyone else without the express consent of the company. Her line manager (a company employee) had to agree all her holidays and she told him if she went off sick.

Then, in December 1999 she was told to transfer to another agency. She signed on with NES International, which provided her with a statement of terms and conditions, referring to her as a “sub-contractor”. During that time, she received a bonus from the company, although this was paid through NES.

In July 2005 she successfully applied for the post of full time receptionist with the company. She then became an employee until her dismissal in March 2006. She claimed unfair dismissal, but the company argued that she had did not have the necessary one year qualifying period.

Tribunal decision

The tribunal chair decided that there had been an implied contract between Wood Group Engineering and Ms Robinson prior to July 2005. This was because of the degree of control it exercised over her prior to her express employment with them, and the fact that there was “mutuality of obligation” between the parties. In other words, that the company was required to offer her work and she was obliged to accept it.

EAT decision

The EAT, however, disagreed. It said that the tribunal chair had misinterpreted the decision of the Court of Appeal in Dacas v Brook Street Bureau (see monthly LELR 88 for more details). It did not say that a contract exists just because a company has control over a claimant and there is mutuality of obligation.

Nor had the chair considered whether it was necessary to imply a contract of employment. If he had, the answer would have been “no”. Although tribunals should consider whether there might be an implied contract, they should only conclude that one exists “where it is necessary to do so.” For instance, if there was no other way of explaining the arrangements under which the person was working, or if the written contracts turned out to be a sham. That was not the case here.

Indeed, there were “quite extensive contractual obligations both in terms of control and mutuality of obligation” between Ms Robinson and the agencies. She had to submit time sheets and had to act in a way that could not conflict with the agencies’ interests. Her contract with NES had a number of clauses itemising her obligations to the agency, which only ceased when she became an employee in July 2005.

In other words, there were “perfectly intelligible” explanations for the contractual arrangements in place between her and the agencies and between the agencies and the company. There was therefore no need to imply a contract of employment.