01 December 2010 #Employment
The case of Tilson -v- Alstom Transport demonstrates that a significant degree of integration of an agency worker into an organisation may not necessarily lead to a contractual relationship being implied.
In this case the relationship between the worker and end user showed all characteristics of employment. The worker reported to a line manager even for an application for annual leave; employees reported to him; he was authorised to recruit staff; he was responsible for the business and operations aspects of his role; he represented the end user in negotiating contracts, he had a company phone and had computer and network access.
Indeed it was accepted that if there was a direct contractual relationship between worker and end user, it would be a contract of service. However, owing to the complex agency relationship in this case, it was held upon appeal that no contract would be implied. The worker had been unwilling to accept a permanent contract of employment with the end user when it was offered to him; his refusal to join the workforce implied that he regarded himself as an independent contractor and therefore understood the advantages of remaining so. To imply a contract was against the parties` intentions or wishes.
It was held that where the parties would have acted in exactly the same way if there had been no contract, that is fatal to the implication of a contract.