Polish workers fail to get appeal court's backing

The Court of Appeal has overturned a ruling that a group of Polish workers recruited by an employment agency were “employees”.

Mrs Kalwak and her colleagues were recruited in Poland by employment agency Consistent Group to work at Welsh Country Foods. They brought claims of unfair dismissal after they were dismissed for seeking to join the T&G general union (now part of Unite). They had to show that they met the definition of “employees” if they were to be able to pursue their claims.

The Employment Appeal Tribunal upheld a tribunal’s findings that certain terms of the workers’ contracts labelling them “self-employed subcontractors” were a sham. They had no real choice other than to accept work provided by the agency, creating obligations that indicated a contract of employment.

But the Court of Appeal has overturned that finding. It said that before a written term can be rejected, there must be a clear finding that the real agreement was different, and that the written term was deliberately misleading. The tribunal had not done this and the court sent the case to a different tribunal to be heard again.

Consistent Group Ltd v Kalwak & others and Welsh Country Foods Ltd [2008] EWCA Civ 430