Daily grind

Augustin v Total Quality Staff Ltd

In order to claim unfair dismissal, agency workers have to show they are employees. In Augustin v Total Quality Staff Ltd, the Employment Appeal Tribunal (EAT) said that the crucial question is whether they can show they have been employed on a series of daily contracts of service.

Basic facts

On starting work for the employment agency, Mr Augustin signed an agreement as a “temporary worker”. Clause five stated that he did not have to accept any of the shifts that the agency offered, but that once he did accept he had to do the work himself and complete it to the best of his ability.

He then started work as a forklift truck driver and warehouse worker for Coca Cola in August 1996 where he worked long and regular hours. When working at the warehouse, he was supervised by Mr Humphries, an employee of the agency.

When the relationship with the agency came to an end, Mr Augustin claimed unfair and wrongful dismissal (among other things) which meant he had to show he had actually been employed by the agency under section 230(3)(b) of the 1996 Employment Rights Act. If he succeeded, he then had to show that he had been continuously employed for a year under section 212(3)(b) of the Act for his unfair dismissal claim to succeed.

The agency accepted that he was a worker, but not that he was an employee.

Employment Rights Act (ERA) 1996

Section 230 (3) says that a worker means an individual who works under:

(a) a contract of employment, or
(b) any other contract, whether express or implied …whereby the individual undertakes to do or perform personally any work or services for another party to the contract

To show continuity of employment, section 212(3).of the Act states that any week during the whole or part of which an employee is:

(a) incapable of work because of sickness or injury
(b) absent from work because of a temporary cessation of work, or
(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose

counts in computing the employee's period of employment.

Tribunal decision

The employment judge said that the key question was “whether there was an over-arching umbrella or global contract of employment that existed over and independently of those individual contracts of engagement that came into effect on a daily basis under the express terms of engagement.”

She decided that no such umbrella contract existed and therefore dismissed Mr Augustin’s claim. He appealed against the decision.

EAT decision

Having taken current case law into account, the EAT said that the crucial question “was not simply whether or not there was an overarching, umbrella or global contract of employment …but whether there were a series of daily contracts of service”.

Given the findings of fact, in particular the question of control (which, unusually, was exercised by the agency as opposed the client or end user) and taking clause five of the agreement into consideration, the EAT concluded that “once a day’s work was offered and accepted by the Claimant, then for that day a contract of service came into existence.”

However, that was not the end of the matter because if he was an employee working under a succession of short contracts, Mr Augustin then had to prove he had actually been employed for a minimum of one year.

Although the ERA presumes that an individual has continuity of employment, the agency argued that this did not apply to Mr Augustin as he was sometimes absent from work through sickness, holiday, or when he had not been offered work. However, the EAT decided that these were findings of fact that a new tribunal needed to decide and therefore remitted the issue for consideration along with his other claims of race discrimination and outstanding holiday pay.