THE RECENT decision of the Court of Appeal in Dacas v Brook Street Bureau has thrown up issues for any employer who uses the services of agency staff. This case has cast significant doubt on the widely-held belief that, while there was a possibility that an agency worker might be the employee of the agency, there was no chance they would be seen by tribunals to be employed by the end user - the company at which they were actually working.

Mrs Dacas had worked as a cleaner for Wandsworth Council for about four years. She worked as a temp through Brook Street Bureau, as opposed to being employed directly by the council. She complained of unfair dismissal and argued initially that her employer was either the council or Brook Street.

The tribunal followed the accepted legal position and said she was employed by neither party. She was not employed by the council because there was no direct contract between them, and therefore no contract of employment. She was not employed by Brook Street because it did not exercise a sufficient degree of control over her daily working activities.

In relation to Brook Street, the Court of Appeal agreed with the tribunal that there was not sufficient control to give rise to an employment relationship. Although the facts of the case meant that the court did not need to go on and expressly decide whether Mrs Dacas was an employee of the council, it did strongly suggest that this might be the case. The court noted that the council exercised control over Mrs Dacas and over her work.

Additionally, the council was under an obligation to pay for the work done by Mrs Dacas and she did in fact receive payment in respect of the work she did, albeit from Brook Street. Mrs Dacas, for her part, was under an obligation to do what she was told and to attend punctually at stated times.

The implications here are obvious. Employers can no longer expect to be automatically immune to action by agency staff. Careful management of agency arrangements is now required, as is careful drafting of the relevant agreement between the employer and the agency.

- Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at stephen.elliott@wardhadaway.com

Published: ??/??/2003