How to Write First Class Law Essays

Instead of explaining how to write first class law essays, we have decided to show you an Undergraduate First Class Law Essay Example with Footnotes. This law essay was written by a student at one of the top UK universities. Please do not copy or rely on this essay for legal advice. The purpose of this essay is to provide you with some guidance on how to structure an undergraduate law essay. This law essay comes with footnotes and a bibliography to give you an idea of how to reference your work.

Undergraduate First Class Law Essay Example with Footnotes - Labour Law

Why has “the triangular relationship” become so significant for Labour Law, and what particular problems have arisen in relation to regulation of this form of employment relation in the United Kingdom?

The current economy has become driven with developing technologies and new production methods. In effect there is an increased demand for more flexible working methods where skills required alternate continuously. For the labour market, this has had the effect of the emergence of new working methods and a more diverse range of contracts such as temporary agency work. However, the new Lisbon strategy aims to promote ‘more and better jobs’. There is an internal paradox in the aim as most workers operating under new forms of contracts do not receive enough legal protection, which can in turn have an adverse effect on employment figures. In the UK the current case law is unclear and contradictory, and the old contractual framework is inapt to facilitate new working methods as necessary aggregate function necessary to qualify as an employee are now dispersed in the end user and the working agency. Many agency workers are thus denied employment rights as a result. The UK Parliament has taken no initiative to introduce legislation and through various documents it is easy to deduce UK’s satisfaction with its current protection given to workers. At EU level, the directive on agency workers is to accord equal treatment to agency workers in 2011, when the directive comes into force.

Clearly therefore, the triangular relationship is of increasing significance within European and UK Labour Law. The reasons for this heightened significance relate predominantly to socio-economic factors that determine the nature of labour demand. As the global economy becomes more dynamic, companies are increasingly requiring a flexible workforce that allows them to respond to fluctuating market forces and variation in demand from consumers. This is reflective of factors such as the increasing sophistication of technological advancement, which has allowed consumers greater choice, less commitment, and faster expectations than ever before.

The agency worker employment relationship fulfills the needs of businesses generated by our evermore dynamic economy in a way that traditional employee relationships cannot because they permit more flexible working arrangements, for the predominant reason that much of the regulation and protection that applies to employees of the company does not apply, or does not apply to the same degree, to workers engaged through an employment agency. This lack of traditional employment regulation within the triangular employment relationship has been one of the major driving forces behind the increasing significance of the triangular relationship to labour law.[1] In addition, there are tangible tax-based advantages to using agency staff rather than engaging further employees. For example, end users of agency workers do not carry the same national insurance obligations towards the agency workers as they do towards their employees. This provides further explanation of the increasing importance of the triangular relationship within the labour market and is clearly a contributing factor to why the workforce of many companies in the UK is comprised of up to 40 percent temporary agency workers.[2]

However, the same factor that has precipitated the increase in the relevance of the triangular relationship - lack of regulation - has also been the source of a great deal of difficulty for labour lawyers when dealing with employment disputes involving agency workers. While the attraction to businesses of hiring temporary agency workers is obvious, the lack of regulation of the triangular relationship has generated significant disputes as to whether agency workers should nevertheless be offered some form of protection for their employment rights: While flexibility in employment may be important in promoting economic innovation and growth, this seems to be somewhat at odds with the priorities laid out in the European Union’s Social Policy Agenda for 2006-2010. The two priority areas under the Social Policy Agenda are “employment, under the prosperity objective”, and “equal opportunities and inclusion, under the solidarity objective”.[3] At a European level therefore, the focus is on achieving full employment and guaranteeing equal rights for workers, neither of which lies at the heart of the rationale behind the triangular relationship. It is therefore possible to observe a tension between the driving forces behind the emerging significance of a largely unregulated triangular relationship in labour law, and the need for greater regulation of the relationship in order to comply with European Union policy. The remainder of this essay will analyse the attempts that have been made thus far to introduce greater regulation of the triangular employment relationship, and the difficulties that have arisen in relation to such attempts.

The commitment of the EU to providing better job security and protection for temporary agency workers is reflected both in recent legislative developments at a European level, and by the reaction of the UK Government to such protection at a European Level. In March 2002 the European Commission adopted a proposal for a Directive on Temporary Agency workers. In October 2008 this was finally approved by the European Parliament in the form of the Temporary Agency Work Directive (Council Directive 2008/104/EC).[4] Article 5(1) of the Directive makes provision for the equal treatment of agency workers and workers employed directly by the user firm in respect of ‘basic working and employment conditions’. However, it is unclear whether the Directive does in fact offer meaningful regulation of the triangular relationship: Articles 5, 2(1)(f), 2(2), 6, 7 and 8 appear to establish some basic rights of temporary agency workers, but the Directive also offers wide opportunities for exemptions by Member States, and does not guarantee equality between temporary agency workers and those directly employed in all circumstances.[5]

As Pat McFadden MP noted in his evidence to the House of Commons prior to enactment of the Directive; “it is not the full suite of employment legislation”.[6] As such, it will remain to be seen whether European Community intervention in regulation of the triangular employment relationship will in fact have a discernable impact on the actual level of regulation that occurs in practice. This is reflective of a general problem of lack of consensus regarding regulation of the triangular relationship at a European level, something that was evident during the evidence given to the House of Commons on the Directive before implementation by Pat McFadden MP. In his evidence he notes that “I think it would be fair to say there is a variety of views on this.”[7] This indicates that at a European level intensive regulation of the triangular employment relationship is unlikely to occur because of the difficulty in accommodating the range of approaches to agency work across the EU; as Mr McFadden MP notes, in some EU Member States agency work was illegal until as late as 2003.[8]

The major specific problem that has arisen under UK common law with imposing regulation on the triangular employment relationship is the ambiguity of the employment status of the temporary agency worker.[9] Wynn and Leighton have characterized the relationship thus; “In a typical triangular relationship, a strict contractual analysis may deny any rights to the worker against either of the parties on the basis that the intermediary is only a recruiting agent, thus denying long term mutuality or control and the end-user does not pay the worker so again there is no mutuality to found any type of personal contract.”[10] This is significant because under UK law many employment rights are only available to those classed as employees, who can be said to be party to an employment contract with the party against whom they seek to assert employment rights. In the case of some employment rights, it is also necessary for the worker to have been employed by the defendant company for a minimum period of time before the right of action accrues. Such is the case with actions for unfair dismissal (where the employee must generally have been employed for a minimum of one year) and rights relating to redundancy (in which the employee normally must have been employed for at least to years).[11] Traditionally, the legislative definition of an ‘employee’ under UK labour law has been somewhat static, as noted by the Employment and Social Affairs Directorate-General of the European Commission.[12] The major difficulty in regulating the triangular relationship in the UK has therefore been in defining the status of agency workers such that it is possible to regulate the triangular relationship in the absence of an express contract of employment.

Early attempts to bring agency workers within the definition of an employee and thus subject their labour to regulation saw agency workers claiming to be the employees of the agency itself. In McMeechan v Secretary of State for Employment[13], the Court of Appeal appeared to be willing to consider this analysis when they accepted that on the facts of the case the temporary agency worker was entitled to be treated as an employee of the employment agency in the context of a specific engagement, rather than in the context of the relationship more generally. However, this has since been doubted by the case of Bunce v Postworth Ltd t/a Skyblue[14] and it now appears that the relationship between the temporary agency worker and the employment agency will not generally give rise to a contract of employment. In the absence of an employment contract between the temporary agency worker and the employment agency it has therefore become an attractive option for temporary agency workers to assert a contract of employment between themselves and the end user of their labour.

The series of legal challenges involving this type of assertion began with Franks v Reuters Ltd[15], in which the Court of Appeal held that even where there is ostensibly a triangular relationship, where there is sufficient control of the temporary agency worker by the client company there could sometimes be held to be an implied contract of employment between the temporary agency worker and the end user of their services. The principle by which the Court of Appeal reached this conclusion was that over a long course of dealing between the temporary agency worker and the employment agency the court could construct a set of obligations.

Given the very limited remit of the control test in Franks v Reuters, it is perhaps unsurprising that the Court of Appeal went on to relax the test further for where an agency worker will be classified as an employee. Perhaps the most significant of these cases was that of Dacas v Brook Street Bureau (UK) Ltd.[16] In that case, the Court of Appeal held (obiter) that a temporary agency worker could in theory become an employee of the user firm, where the firm had control on a day-to-day basis over the work of the worker, supplied a uniform to the worker, and the worker had worked exclusively for the user firm for a number of years. This employer-employee relationship was able to occur through the creation of an implied contract of employment. However, the case of Dacas is also of note in that in addition to looking to the longevity of service on the part of the claimant, the court was also willing to look to the contract between the temporary agency worker and the employment agency in determining the existence of a contract of employment between Mrs Dacas and the end user of her labour. This seems to indicate a degree of artificiality in the reasoning of the Court of Appeal, suggesting that their desire to bring the triangular employment relationship within the sphere of regulation is such as to lead them to find justification for doing so through unlikely channels.

Since Mrs Dacas had not asserted in her claim that she was an employee of the user firm in question her case was not decided on this basis, however the Court of Appeal soon approved its own obiter dicta in Dacas in Cable & Wireless plc v Muscat.[17] Muscat was significant in that unlike in Dacas or Franks v Reuters, the court was willing to find the existence of an employment contract between the agency worker and the end user of their labour even where the period of service was a mere 9 months. This seems to undermine the principled basis of the finding of an employment contract in Franks v Reuters, in that the implied contract was not based on a course of conduct over an extended period of time. This highlights the extent to which the common law has been unable to adequately rationalise the nomenclature of the agency worker’s position as an employee such as to fit the triangular relationship comfortably within the sphere of employment regulation.

It was hoped that the Court of Appeal would clarify the state of the law, or at least provide a more satisfactory jurisprudential justification of the decisions in Dacas and Muscat in the case of James v Greenwich London Borough Council.[18] The Court of Appeal’s decision in James is of significance in relation to the regulation of the triangular employment relationship, in that it appears to put an end to the emerging trend of ‘regulating via the backdoor’ by enabling regulation of temporary agency workers through the construction of an employment contract. The Court of Appeal held that rather than looking to individual qualities of the relationship between the temporary agency worker and the user firm in order to determine whether there existed a contract of employment, the court should instead have regard only to the basic principles of contract law, with any policy decisions to be left to Parliament. Mummery LJ made clear in his judgment that the result of this is expected to be that the courts will generally no longer be willing to find an implied employment contract between the temporary agency worker and the user firm; “… [I]n general it would be very unusual for an appeal to the EAT or to (the Court of Appeal) to have a real prospect of success if the ET's conclusion … has been reached by applying the correct test of necessity.”.[19] As the latest judgment in the Court of Appeal’s series of decisions relating to the employment status of temporary agency workers, this represents a major obstacle to the regulation of the triangular employment relationship.[20] However, it also appears to be a recognition of the inappropriateness of attempting to impose regulation on the non-traditional triangular employment relationship by way of fitting it within the traditional employment paradigm – something that was accepted by the Court of Appeal in James; “This is a matter of controversial social and economic policy for debate in and decision by Parliament”.[21]

In conclusion, agency work is just not able to operate within the existing employment framework. This is because the necessary aggregate functions are dispersed over two parties, namely end-user and the agency. This denies the agency worker the status of an employee, which denies any employment rights emanating from the aforementioned status. The UK courts have made an effort to establish employee status to agency workers. In Dacas, the Court found that the functions required were not aggregate whereas in James the implication of a contract with an end-user was not required as it was not needed to explain the relationship of the employee between the end-user and the work agency. The UK courts however, recognize the current problem in the UK but it is not within their ambit of power to reform the law. The Parliament however, seems reluctant as evidenced through the failure to pass the Temporary workers private bill. The directive on temporary agency workers in 2011 is expected to reform the law through the grant of equal status to that of permanent employees, to temporary workers. This will hopefully establish an equilibrium between ‘more and better jobs’ and allow the labour market to profit from the new flexible working arrangements.

Bibliography

Books

John G Duddington, ‘Employment Law’, (2007) Pearson Education

Journal Articles

Michael Wynn and Patricia Leighton, ‘Will the real employer please stand up? Agencies, client companies and the employment status of the temporary agency worker’, (2006) Industrial Law Journal 301

Patricia Leighton and Michael Wynn, ‘Temporary agency working: Is the law on the turn?’, (2008) Company Lawyer 7

Nicola Countouris and Rachel Horton, ‘The Temporary Agency Work Directive: Another Broken Promise?’, (2009) Industrial Law Journal 329

Michael Wynn, ‘Temporary agency working: tide turns on temps’, (2008) Company Lawyer 275