Kent Solicitors

If an employee

· works though, and is paid by, an agency for X months at a client
· then joins the client and works for Y months
· and is then dismissed

How many months continuous employment does the employee have X months? Or X+Y months?

It is important because the employee does not acquire the right to be unfairly dismissed until he has clocked up 12 months continuous service.

In several 2008 cases, the

· employer argued for X months only and
· employee argued that there existed an implied employee contract with the client so that the period of continuous employment was X + Y months

The Courts have now said that where an agency contract is genuinely in place, then there is no need to imply a contract between the agency employee and the client (“an implied contract”), especially where there is no need to do so

This means that the Tribunal should now consider whether the client

· could (or did on occasions) refuse to accept a different employee
· guaranteed work throughout the period of contract
· paid the employee when work did not take place

If he could or did do these things, then this points towards an implied contract - otherwise not!

Labels: Agency worker continuous employment