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Article: Employment and the Law - Recent Developments by Louise Fernandes-Owen

Louise Fernandes-Owen of Field Fisher Waterhouse LLP examines the latest key employment law developments. 

Agency worker not entitled to protection from discrimination

The Court of Appeal has confirmed that an agency worker was not an 'employee' of either the agency who supplied him or the agency's client, and that he did not fall within the wider definition of "employment" under discrimination legislation. He therefore had no protection against discrimination.
In Muschett v HMPS, Mr Muschett commenced a working relationship with HM Prison Service (HMPS) as an agency worker placed by Brook Street (UK) Limited. He signed a contract with the agency which agreed to provide his services to HMPS but had no written contract with HMPS. He subsequently brought claims for unfair dismissal, wrongful dismissal, race, sex and religious discrimination. 

The unfair and wrongful dismissal claims depended on Mr Muschett showing that he was an 'employee' under section 230(1) of the Employment Rights Act 1996 (ERA), which defines an employee as an individual who works under a contract of employment. The discrimination claims depended on his being either an 'employee' under a contract of employment or in its 'employment' in the wider sense. This is defined, for example in the Race Relations Act 1976, as 'employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour'.

The Employment Tribunal dismissed Mr Muschett's claims. He was not an employee of Brook Street or HMPS under ERA or in the employment of HMPS within the wider definition in discrimination legislation. In relation to establishing whether Mr Muschett was an employee of HMPS, as there was no mutuality of obligation (i.e. he was not under any obligation to work for HMPS and could terminate the assignment at any time and without notice, and HMPS was under no obligation to provide him with work), there was no contract of employment. There was no need to imply a contract between Mr Muschett and HMPS as the contractual terms were clear. Further, he did not have a contract with HMPS personally to do any work for them, so his discrimination claims also failed. 

The Court of Appeal upheld the Employment Tribunal's decision. Mr Muschett was not an employee of HMPS. His status remained at all times that of an agency worker. In relation to his discrimination claims, the Court confirmed that the fact that Mr Muschett was under no obligation to HMPS to work for them and could terminate his engagement at any time by giving notice to Brook Street was fatal to his claim to have had a contract for services with HMPS. It was not necessary to imply such a contract. 

This case indicates that, as the law stands, agency workers in such situations (i.e. not employed by either the agency or the agency's client) may have to show that it is necessary to imply a contract with the agency or its client to have protection against discrimination. This may be difficult to do if the contractual arrangements between the parties, as in this case, already clearly explain the working relationship. 

From 'sick note' to 'fit note'

The Government has published guidance on the new 'fit notes', which are due to be introduced for use by GPs, replacing the traditional sick note. 

From 6 April 2010: 
• GPs will have two options to choose from: 'not fit for work' and 'you may be fit for work taking account of the following advice'. The latter option is intended to acknowledge that it is not the doctor, but the employer, in consultation with their employee, who is best placed to decide whether they can accommodate any changes to facilitate a return to work.
• the new 'fit note' will list common types of changes that employers can introduce to encourage a return to work e.g. 'a phased return to work', 'amended duties', 'altered hours' and 'workplace adaptations'. Listing common types of changes is intended to encourage discussions between doctor and patient, as well as between employee and employer, regarding the potential options that may facilitate a return to work. 

Time off for training - regulations published

Regulations outlining the new right to request time off for study or training are due to come into force on 6 April 2010. The regulations, which are intended to apply to employees who have been employed for at least 26 weeks, outline the following:

• the information which any request for time off for study or training must provide;
• the procedure which employers must follow when considering such requests (e.g. hold a meeting with the employee and provide a right of appeal);
• the entitlement of employees to make a complaint to an Employment Tribunal where an employer has breached the procedural requirements; and
• the maximum amount of compensation that may be awarded where a complaint is well-founded (8 weeks' pay).

The right is due to be introduced for employers with 250 or more employees in April 2010 and will be extended to all employers from April 2011.

Louise Fernandes-Owen is the Professional Support Lawyer in the Employment and Pensions Group at Field Fisher Waterhouse LLP and can be contacted at louise.fernandes-owen@ffw.com 

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