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Helen C
Member - 17 posts
An Agency worker of mine who has been working for the same Client for 4 years as a casual worker had an accident with his forklift truck 2 nights ago and knocked a wall down...He has had the DNA test which proved negative and was suspended pending an investigation..I have been informed today that the Agency Worker has been banned from the site and they do not wish him to work their anymore.what are his rights regarding this please? He did every thing by the book and has not a blemish on his character...this is the first accident..can the Client just ban someone for having an accident? I am unsure where to proceed next because I know that in some cases an agency worker has as much rights as a full time employee...please help! many thanks!
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James Fairchild
Member - 336 posts
Are you the agency, Helen?
In reality, someone with such long service may well be able to claim employment rights (see Dacas v Brook Street and James v Greenwich) and hence a detriment and the right to claim unfair dismissal. Even if not, there is still a potential wrongful dismissal claim.
Were I advising the worker, I would suggest that he starts an ET1 against both parties (with relevant appeal letter first) in the hope that at least one settles.
Were I advising the agency, I would probably say that any issue such as an accident on the client's site (and consequential loss thereof) is a H&S responsibility of the client and their employee/public liability insurance and/or that they are vicariously liable for what has happened.
Were I advising the end-user client, I would advise them to deny the existance of an implied relationship and try to claim (as per James v Greenwich) that the arrangements can adequately be explained by the explicit contracts that are in place.
Do bear in mind legislation such as the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
Helen - if you're lucky, you as the agent can negotiate with the client for him to get his job back, and none of the above will be necessary. I personally think the client should pay the inevitable settlement rather than the agency, but it depends what is in the written contracts.
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