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UK – Blacklisted agency worker loses appeal

22 January 2014

An agency worker has lost his appeal against a contracting company who, he claims, blacklisted him for raising concerns over health and safety issues and for his participation in a trade union, reports the Chartered Institute for Personnel and Development (CIPD).

Mr Smith worked under a typical tripartite agency arrangement whereby he was placed by employment agencies to work on certain projects. According to the CIPD, he had no written terms with the employment agencies that were engaging him. Once his assignments ended, Mr Smith discovered that his name was included on an employment blacklist as a result of his trade union and health and safety activities.

The law at the time protected employees from any detriment on these grounds. Mr Smith brought a claim alleging that he should be protected by this legislation and that the courts should imply a contract of employment in the light of his working arrangements.

Mr Smith lost his initial case against the contracting company, Carillion, because the Employment Tribunal ruled that, as he was an agency worker and not directly employed by Carillion, he was unable to mount a legal challenge.  

At the Employment Appeals Tribunal, the initial verdict of the Employment Tribunal was upheld as an employment contract never existed between Mr Smith and Carillion. The law will only imply a contract between a worker and an end-user where it is necessary to explain the work undertaken.  Significantly, in this case, the Employment Appeal Tribunal reasserted that legal test strongly. 

Despite evident sympathy with the way in which Mr Smith had been treated, such as that he was interviewed before commencing work, was engaged on long-term projects and became integrated with the end-users business, his claims were found not to satisfy that test. None of these contentions demonstrated that, in reality, he had been an employee of Carillion. Similarly, the court rejected his argument that the Human Rights Act 1998 and European Convention on Human Rights required an employment contract to be implied in this situation.

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