Agency workers

Kalwak and others v Consistent Group Ltd and another [2007] All ER (D) 319 (May)

The agency recruited Polish staff in Poland, organised their travel, accommodated them in the UK (for full rent) and organised their work with the agency’s clients. Many of the individuals had limited English. However, the documentation with which they were provided described itself as a ‘self-employed sub-contractors’ contract for services’. It expressly disclaimed any obligation to provide a certain amount of work or any provisions relating to sickness, holidays and pensions. It also allowed the agency to prevent the individual working for someone else, if there was a conflict with working for the agency. When a number of Poles were dismissed for seeking to join a trade union, the question arose as to their employment status. The court upheld the finding of the tribunal that despite the wording of the documentation they were employees of the agency. The economic dependency on the agency was so great that they were certainly workers, whether actually working or not, and again, on these particular facts, there was sufficient control by the agency to hold that they also qualified as employees. Contractual terms pointing in the opposite direction ‘bore no resemblance to reality’.