The EAT in Wood Engineering v Robertson has confirmed that well crafted contracts will continue to ensure that agency workers remain exploited and without rights.
The EAT has decided that the presence of mutuality of Obligation (an expectation that a company will provide regular work and that a worker will do the work) and Control of the worker (The company telling the worker when, where and how to do his job) were not sufficient in themselves to decide that the worker was to be considered an employee if the existence of mutuality of Obligation and Control could be accounted for by way of the contractual agreement signed. Where mutuality of obligation and control are contained in the contract and the contract itself is not a sham, then according to the common law rules of contract, the contract will remain valid, and the agency worker will not be an employee of the end user company.
Agency workers exist without the rights that are considered as essential to a decent quality of life, that of job security, holiday, sickness and pension rights. Agency workers are often low paid, paid lower than unionised labour, and are often ignorant of what rights they do possess.
The free license given to agencies allows for legal discrimination between different classes of workers. It divides workers and undermines the rights of all.
With the courts failing to rectify the situation the only remedy now is for new legislation to be adopted.
Workers hired via agencies need the same rights as employees after their first year.
© Workrep 6 / 8 / 2007