In the recent case of RNLI v Bushaway, the EAT has ruled that an agency worker engaged under an agreement which explicitly stated that she was neither employed by the agency or the end user, and which described her as a "temporary worker", was in fact engaged under a contract of employment with RNLI, the end user. 

Ms Bushaway was engaged through an agency as an administrative assistant in the fundraising department of RNLI. She was told the position was a temporary assignment as a result of a hiring freeze at RNLI, and that it might become permanent for the right candidate. She was offered a permanent position with RNLI after 5 months with them.

The agreement with Ms Bushaway contained an entire agreement clause. This type of clause aims to prevent the party relying on it from being liable for any statements or representations (including representations made prior to the parties entering into the agreement) except as expressly set out in the agreement. RNLI sought to rely on this clause which stated that Ms Bushaway was not an employee.

The EAT held that "the existence of an entire agreement clause is not conclusive" and therefore the tribunal had been entitled to look to the surrounding circumstances to determine the nature of the relationship between the parties. When the EAT examined the context behind the written agreement in relation to what was actually negotiated before and after Ms Bushaway started work, the EAT stated "it is clear that [the written agreement] does not reflect the entire bargain between the parties".

The circumstances in Ms Bushaway's case gave rise to ambiguity, as the written agreement did not reflect RNLI's practices and it did not correlate with correspondence between RNLI and Ms Bushaway. Given these differences, the EAT felt justified in looking beyond the terms of the agreement itself. They held that Ms Bushaway had been an employee of RNLI for the entire time she worked for them.

Although there was disparity in this case between the terms of the written agreement and other evidence, employers are still encouraged where possible to ensure that agency workers are engaged on contracts of employment with the agency.

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