Employment Agency Worker & Dismissal

The law regarding Unfair Dismissal is set out in Section 6 of the Unfair Dismissal Act 1977(as amended) and there must be substantial grounds for a dismissal.

For a person to be covered by the Act, they must have been an employee of the employer who terminated their employment. This sounds obvious, expect there is a difference when it comes to ‘agency worker’ and things can get more complicated.

Sometimes a person considers they were an employee of an employment agency and the agency considers the same person was not employed by them, but instead employed by the third party ie the agencies client.

Employment agencies provide a service to a client ie personnel and pursuant to S.13 of the Unfair Dismissal Act 1993, the individual employee will be considered to be an employee of the agencies client ie the third party.

A difference of opinion can arise in cases of this nature, with one party stating the person is an employee of the employment agency and another party stating the same person is a direct employee of the agencies client ie third party.

If this disagreement arises, it is helpful to firstly review the contract of employment, then assess who gave who job instructions etc. In essence, the relationship between the employment agency and employee must be examined fully, then the relationship between the hirer (third party) and employee. Does the employment contract specifically state the employer is the employment agency is one such necessary review to obtain an answer to this issue.

Who had control over the employee on a day to day basis ? will have to be assessed.

Definition of an Agency Worker

An agency worker means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency.

Definition of a Hirer

A hirer means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person.

Definition of an Employment Agency

Employment agency means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person.

It is very important to firstly assess in a case of this nature, who is the employer, before embarking on a case. If a person is dismissed by the third party ie hirer, they may have right to legal action under the unfair dismissals act, if certain conditions are met, but if the agency is named in the application as the employer, the agency may seek to rely on the legislation by contending they are not the employer, so the case officer has no jurisdiction to deal with the case in the first place.

Disclaimer 

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article. 8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.

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