Smith v Carillion (JM) Ltd & Anor

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal and Employment Tribunal findings that he had not been employed directly by Mowlem/Carillion but supplied through an employment agency, and therefore had no contract of employment or limb (b) worker status with the end user. The court applied the established "necessity" test for implying a contract in agency contexts (as explained in James and related authorities) and held that the Tribunal's factual analysis and conclusion were open to it on the evidence.

Further, even if the appellant had been a limb (b) worker, the Court of Appeal held that the Human Rights Act 1998 section 3 could not be used to construe domestic statutes retrospectively to assist him because the relevant disclosures to the blacklisting database occurred before the Act came into force. The court rejected the contention that the disclosures constituted a continuing act that would bring them within the Act's scope. It also held that section 44 of the Employment Rights Act 1996 had not been extended to limb (b) workers at the relevant time.

Background and parties: The appellant, a construction worker and union safety representative, alleged he had been blacklisted after information about his trade union and health and safety activities was supplied to the Consulting Association. He sued (inter alia) Carillion (formerly John Mowlem & Company plc) contending detriment contrary to section 146 Trade Union and Labour Relations (Consolidation) Act 1992 and section 44 Employment Rights Act 1996.

Procedural posture: The Employment Tribunal found the claimant had been supplied to Mowlem by an employment agency (Chanton) and that no contract existed between him and Mowlem. The Employment Appeal Tribunal (Slade J) dismissed his appeal. The claimant appealed to the Court of Appeal.

Relief sought: The claimant sought declaration and remedies for victimisation/detriment under s146 TULRCA and s44 ERA, and relied in the alternative on construction under section 3 Human Rights Act 1998 to extend protection to limb (b) workers on account of Articles 8 and 11 ECHR.

Issues framed: (i) Whether a contract of employment or a limb (b) worker contract should be implied between the appellant and Mowlem; (ii) whether section 3 HRA could be used to interpret domestic statutes compatibly with Articles 8 and 11 so as to extend protection to limb (b) workers; (iii) whether the acts complained of were continuing acts such that section 3 might apply; and (iv) related limitation and remedial questions.

Court's reasoning: The court reiterated the onus on the claimant to show implication of a contract is "necessary" to give business reality to the arrangement (relying on Modahl, James, Tilson and related authorities). Applying that test to the Tribunal's factual findings (integration into management, interview, site induction, payment via agency, no express contract, termination by Mowlem, etc.), the Tribunal's conclusion that the claimant was an agency worker and not contractually employed by Mowlem was sustainable and not vitiated by legal error. On the Human Rights arguments, the court held that section 3 HRA cannot be used to give retrospective effect to legislation for acts predating the Act (Wilson v First County Trust (No.2)), rejected the appellant's attempt to characterise the disclosures as continuing acts (following Okoro), and found no basis to read section 44 ERA 1996 as applying to limb (b) workers at the relevant time. Consequently the appeal failed.

Appeal dismissed. The Court upheld the Employment Tribunal's and EAT's factual finding that the claimant was supplied to Mowlem by an employment agency and that no contract of employment or limb (b) worker contract should be implied as a matter of necessity. Further, even if limb (b) worker status had been established, the Human Rights Act 1998 section 3 could not be used retrospectively to reinterpret the domestic statutes to the claimant's advantage because the relevant disclosures predated the Act, and the continuing-act argument failed.

On appeal from the Employment Appeal Tribunal (The Hon. Mrs Justice Slade) UKEAT0081/13, which had dismissed the claimant's appeal from the Employment Tribunal. The Court of Appeal ([2015] EWCA Civ 209) dismissed the further appeal.