The boss who gives agency workers a dressing down for a job badly-done could be doing them a big favour, a leading employment law specialist has warned.
Act like an employer, and in the eyes of the law that's just what you become - conferring on temps all the valuable employment rights of permanent members of staff, says Ranjit Dhindsa, head of the Midlands employment law team for law firm Reed Smith Richards Butler.
A simple workplace rocket - or even a complementary appraisal of their work - can bestow expensive employment rights on agency workers, completely negating many of the cost benefits employers find in using temps, she cautioned.
Her warning comes in the wake of a precedent-setting ruling by the Court of Appeal in the case of a self employed cleaner who, over a number of years and through a succession of agencies, had worked at Greenwich Council.
After a period of sick leave she was removed by the agency who placed another cleaner in her job. She brought a claim for unfair dismissal - but targeted the local authority rather than the agency that sacked her.
Although her claim was rejected by an Employment Tribunal, and subsequently on appeal, Ms Dhindsa says the case holds lessons for employers using agency workers, who she says should guard against dealing with temps in a way that gives them rights.
Her advice includes keeping agency workers at arm's length and not integrating them into the wider workforce, keeping their tasks specific and reviewing them regularly to ensure they stay within the guidelines, and seeking indemnities from agencies in respect of claims from the temps they supply.
Employers who relax these rules invite the courts and employment tribunals to infer that any contract of employment exists between the temp and the end user, rather than the agency, Ms Dhindsa said.
"This was an important case, and the out-come will be welcomed by employers," she added. "However they should be aware that employers can create an implied contract between themselves and an agency worker, just by the way they treat them."
Ms Dhindsa went on: "This decision is good news for employers because it means that provided they observe the rules on how to deal with temps, and have the correct documentation in place with the agency and not the worker, no contract of employment should be implied."
She says the question now is whether there will be renewed pressure on the Government to change the law in order to give agency workers more rights.
Lord Justice Mummery, who gave the leading judgment in the Court of Appeal, said the decision was given against the current controversy over the absence of job protection for agency workers on the one hand, and the need to retain a flexible labour market on the other.
Ms Dhindsa says the issue has re-emerged in Europe, and has also been the subject of a private member's bill introduced to Parliament in December, which proposes giving agency workers the same rights as permanent employees.
"The unfortunate consequence of any change of law is that giving agency workers more rights will make employers more wary about employing them."