ESM2300 | Agency and temporary workers: continuous contract of employment or individual contract

Temporary or casual workers can pose a particular problem in that there can be two aspects to consider.

The first is whether a series of engagements with the same engager constitutes an overarching contract of employment (see ESM2320 onwards). These types of contracts can also commonly be known as continuous or umbrella contracts of employment.

The second is whether the individual engagements themselves are contracts of employment.

This approach has been accepted by the courts in a number of cases

• Market Investigations Ltd v Minister of Social Security (see ESM7040)

• Airfix Footwear Ltd v Cope (see ESM7060)

• Nethermere (St Neots) Ltd v Gardiner and Taverna (see ESM7110)

• O’Kelly and Others v Trusthouse Forte plc (see ESM7100)

• Secretary of State for Employment v McMeechan (see ESM7180)

• Clark v Oxfordshire Health Authority (see ESM7190)

• Carmichael and Another v National Power plc (see ESM7200).

Where work is offered and accepted occasionally and irregularly there is unlikely to be an overarching contract of employment. Each engagement will likely be a separate contract of employment or a contract for services depending on the other criteria. This point was covered by Slynn J in 1978

“….. if the arrangements between a company and a person are such that work may be provided and may be done at the will of either side ….. it may well be that this is not properly to be categorised as a contract of employment. If….. the company only delivers work sporadically from time to time, and from time to time the worker chooses to do it, so that there is a pattern of an occasional week done a few times during the year, then it might well be that there comes into existence on each of those occasions a separate contract of service, or possibly a contract for services, but that the overriding arrangement is not itself a contract of employment, either of service or for services.”

[Airfix Footwear Limited v Cope (see ESM7060)]

The above demonstrates that in a case involving a series of irregular and short term engagements each of those engagements may represent an employment - even though there is no overall and continuing contract of employment.