Mr D Smith v 1) Carillion Ltd 2) Schal International Management Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Slade,Mr T M Haywood,Mr P M Smith |
| Neutral Citation | UKEAT/0081/13/MC |
| Court | Employment Appeal Tribunal |
| Subject Matter | Contract of Employment,Victimisation Discrimination,Contract of Employment - Whether established,Victimisation Discrimination - Health,safety,Victimisation Discrimination - Other forms of victimisation,Not landmark |
| Date | 17 January 2014 |
| Published date | 05 October 2017 |
Copyright 2017
Appeal No. UKEAT/0081/13/MC
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE
At the Tribunal
On 10 & 11 October 2013
Judgment handed down on 17 January 2014
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
MR T M HAYWOOD
MR P M SMITH
MR D SMITH APPELLANT
(1) CARILLION (JM) LTD
(2) SCHAL INTERNATIONAL MANAGEMENT LTD RESPONDENTS
Transcript of Proceedings
JUDGMENT
UKEAT/0081/13/MC
APPEARANCES
For the Appellant MR JOHN HENDY
(One of Her Majesty’s Counsel)
And MR DAVID RENTON
(of Counsel)
Instructed by:
Free Representation Unit
Ground Floor
60 Gray’s Inn Road
London
WC1X 8LU
For the Respondents MR DAMIAN BROWN
(One of Her Majesty’s Counsel)
Instructed by:
Clarkslegal LLP
2 Caspian Point
Caspian Way
Cardiff Bay
Cardiff
CF10 4DQ
UKEAT/0081/13/MC
SUMMARY
CONTRACT OF EMPLOYMENT – Whether established
VICTIMISATION DISCRIMINATION
Health and safety
Other forms of victimisation
It is a prerequisite of the right under the Trade Union and Labour Relations (Consolidation)
Act 1992 section 146 or under the Employment Rights Act 1996 of an employee not to have
action short of dismissal taken against him by his employer respectively by reason of his trade
union or health and safety activities that there is a contract between him and his employer. The
requirement also applied when the protection under TULR(C)A section 146 was extended by
amendment with effect from 1 October 2004 to “workers” after the material dates in this appeal.
The common law principles applicable to ascertaining whether a contract was to be implied
between the employee or worker and the end-user of his services in an agency agreement were
those generally applied to all contracts Tilson v Alstrom Transport [2011] IRLR 169 para 8
applied. The Human Rights Act 1998 and Convention rights do not require or permit the
implication of a contract between an agency worker and the end-user of his services in
circumstances in which domestic law would not. In deciding whether such a contract is to be
inferred in a tripartite agency agreement the test of whether it is necessary before implying such a
contract continues to be applicable where the facts would be equally explicable without the
implication of such a contract. James v London Borough of Greenwich [2008] ICR 302 and
Tilson applied.
The Employment Tribunal did not err in holding on the facts before them that no contract between
the Claimant and the Respondent end-user had been established.
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