The employee in the Cairns v. Visteon UK Ltd case [2007], had worked as an administrative assistant from 1998 to May 29, 2005. Since about 2001, the employee’s services had been provided by an agency. The agency, M, had hired the employee under a service contract. During May 2005, a problem arose as to whether the employee had falsified her timesheets. The employer used these timesheets to pay the employee through M.
M carried out an investigation and concluded that the employee had not been dishonest. Even so, the employer refused to continue working with the employee and the purchase order for her services was revoked. M then tried to relocate the employee without success. As a result, M.
The employee filed a lawsuit with the labor court alleging that the employer had unfairly fired her. The main question for the court to examine was whether the employee’s services had been provided under an employment contract. The court concluded that, in the absence of the employment contract between the employee and M, it would have accepted the need to imply a contract between the employee and the employer.
Despite that conclusion, the court refused to find such an implicit contract in the present case. Their reasoning for this was that there was no authority to support the proposition that such a contract could be implied between an employee and the end user when an employment contract existed between the employee and the agency. It was also argued that the agreed test of necessity for the implication of an employment contract between the employee and the employer had not been established.
Therefore, the employee’s claim was dismissed and she later appealed to the Labor Appeal Court.
The employee presented the following:
§ The court had been wrong to conclude that the fact that there was a service contract between M and the employee meant that there could not be a service contract between the employee and the employer; Y
§ The court had not duly considered the question of necessity.
His appeal was dismissed for the following reasons:
§ When the contract between the employee and the agency was for services, it might be possible to involve a service contract between the employee and the end user in order to provide protection to the employee under the Labor Rights Act 1996. However When the employee was an employee of the agency and therefore already protected by the 1996 Labor Rights Act, there was no reason to extend that protection to a second parallel employer. The employee had been hired by M under a service contract, and her arguments in support of the implication of a contract between her and the employer appeared to be based solely on the claim that her claim for unfair dismissal would have had a greater chance of success. . success in front of the employer. Therefore, the court had been correct in not involving an employment contract between the employee and the employer.
§ For a service contract to be implied by conduct out of necessity, it was necessary to have demonstrated that the conduct of the employee and the employer had been consistent only with the existence of a service contract between them.
In this case, however, the court was able to find that the conduct of the employee and the employer had been equally compatible with the employee’s services rendered to the employer.
according to the terms of the service contract between the employee and M; Y
the terms of the commercial contract entered into between M and the employer for the purchase of the employee’s services.
Consequently, it was held that the court had duly considered the question of necessity.
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© RT COOPERS, 2007. This Information Note does not provide an exhaustive or complete statement of the law related to the topics discussed, nor does it constitute legal advice. Its aim is only to highlight general issues. Specialized legal advice should always be sought in relation to particular circumstances.
