Who employs the agency worker? Some relief for end-users

What can end-users do to limit risk?

Robust documentation

All contracts and other documentation should support the intentions of the parties as regards employment status. In the end-user's case, this will usually involve, as a minimum, ensuring that the agency employs the worker in question and that there are express statements to the effect that the worker is not an employee of the end-user.

The Conduct of Employment Agencies and Employment Businesses Regulations 2003 are intended to make it clearer on what basis the agency is contracting. Case law has, however, made it clear that the labels that parties attach to the relationship are by no means conclusive.

Keep assignments as short as possible

Restrict the length of an assignment. Although mere length of time is not a determinative factor, it will at the very least limit the extent to which the individual will accrue employment rights based on length of service should an implied contract be found.

Indemnification

An end-user could seek indemnities in the contract with the employment agency against any claims by the agency workers that they have become employed by and accrued employment rights against the end-user.

Commercially, this may be difficult to negotiate. It would need to be considered on a case by case basis. Also, any agreement to indemnify an end-user would no doubt be reflected in the agency's charges.