| The employee in the case of Cairns v Visteon UK | | | | the issue of necessity. |
| Ltd [2007], had been employed as an | | | | Her appeal was dismissed on the following |
| administrative assistant from 1998 until the 29th | | | | grounds: |
| of May 2005. From a point around 2001, the | | | | § Where the contract between the |
| employee's services had been provided by an | | | | employee and the agency was one for services, |
| agency. The agency, M, had employed the | | | | it might be possible to imply a contract of service |
| employee under a contract of service. During May | | | | between the employee and the end-user in order |
| 2005, an issue arose as to whether the employee | | | | to afford the employee protection under the |
| had falsified her timesheets. The employer used | | | | Employment Rights Act 1996. However, where |
| these timesheets to pay the employee through M. | | | | the employee was employed by the agency, and, |
| M conducted an investigation and concluded that | | | | therefore, already protected by the Employment |
| the employee had not been dishonest. Even so, | | | | Rights Act 1996, there existed no reason to |
| the employer refused to continue working with | | | | extend that protection to a second and parallel |
| the employee, and the purchase order for her | | | | employer. The employee had been engaged by M |
| services was revoked. M then attempted to | | | | under a contract of service, and her arguments in |
| relocate the employee without any success. As a | | | | support of the implication of a contract between |
| result, the employee's employment was | | | | herself and the employer appeared to be solely |
| terminated by M. | | | | founded upon the assertion that her claim for |
| The employee brought a claim before the | | | | unfair dismissal would have had a greater |
| employment tribunal alleging that she had been | | | | prospect of success as against the employer. The |
| unfairly dismissed by the employer. The main | | | | tribunal had therefore been correct not to imply a |
| issue for consideration by the tribunal was | | | | contract of employment between the employee |
| whether the employee's services had been | | | | and the employer. |
| provided under an employment contract. The | | | | § In order for a contract of service to be |
| tribunal concluded that, but for the existence of | | | | implied by conduct on the basis of necessity, it |
| the contract of employment between the | | | | was necessary to have demonstrated that the |
| employee and M, it would have accepted the | | | | conduct of the employee and the employer had |
| need to imply a contract between the employee | | | | been consistent only with there having been a |
| and the employer. | | | | contract of service between them. |
| Despite that conclusion, the tribunal refused to | | | | In this case, however, it had been open to the |
| find such an implied contract in the instant case. | | | | tribunal to conclude that the conduct of the |
| Their reasoning for this was that there was no | | | | employee and the employer had been equally |
| authority to support the proposition that such a | | | | consistent with the employee's services being |
| contract could be implied between an employee | | | | supplied to the employerunder the terms of the |
| and end-user where there existed a contract of | | | | contract of service between the employee and |
| employment between the employee and the | | | | M; andthe terms of the commercial contract |
| agency. It was also held that the agreed test of | | | | made between M and the employer for the |
| necessity for the implication of a contract of | | | | purchase of the employee's services. |
| employment between the employee and the | | | | Accordingly, it was held that the tribunal had |
| employer had not been made out. | | | | properly considered the issue of necessity. |
| The employee's claim was therefore dismissed | | | | If you require further information please contact |
| and she then appealed to the Employment Appeal | | | | us at or Visit |
| Tribunal. | | | | © RT COOPERS, 2007. This Briefing Note |
| The employee submitted the following: | | | | does not provide a comprehensive or complete |
| § The tribunal had erred in finding that the | | | | statement of the law relating to the issues |
| fact that there was a contract for service | | | | discussed nor does it constitute legal advice. It is |
| between M and the employee meant that there | | | | intended only to highlight general issues. Specialist |
| could not be a contract of service between the | | | | legal advice should always be sought in relation to |
| employee and the employer; and | | | | particular circumstances. |
| § The tribunal had not properly considered | | | | |