Employment law

News: Important news if you employ door supervisors or cleaners through agencies

  • Date: 19/02/2008
  • Author/Solicitor: Nick Arron

A recent Court of Appeal decision provides some relief for those of you who employ agency workers in roles such as cleaners or door supervisors, but it is still a tricky area of employment law.

Recent case law had suggested that you, as the operator, would be the employer and not the agency who supplied the worker in a wide range of circumstances. The effect was that you could be deemed to be the door supervisor's employer even though you were employing him through an agency. Consequently, you could be liable under employment law and vicariously liable for their actions.

The courts had decided that if the worker was under the day to day control of the same end user for a significant time then the end user would be the employer and not the agency. Significantly, in one case, a large nightclub operator was held to be vicariously liable for the violent and criminal actions of a door supervisor who they had engaged through an agency.

The Court of Appeal in James v London Borough of Greenwich decided that a contract of employment between an end user and agency worker would only be implied where this it was necessary to reflect the business reality of the situation. The fact that Mr. James has been located with an end user for a number of years did not inevitably lead to the end user being the implied employer.

There is no single indicator as to who is the employer and the court did not explicitly list the factors to consider, so each case is different. However, we can offer some advice to help prevent you being found to be the employer:-

• ensure there is a clear contract between you and the agency for the service

• ensure the agency have an actual contract of employment with the agency worker

• ensure the agency pay the workers wage, NI, holiday, SSP and Tax

• ensure control is through a manager of the agency and not just by you

• allow any individual to be provided as workers by the agency and do not demand specific staff

This is a complicated area, there are no hard and fast answers, but at least the recent decisions makes it less likely you as the end user will be found liable for agency workers.

For further information, please contact Nick Arron