Miss K Johnson v Transport For London and Others: 6008069/2024
EMPLOYMENT TRIBUNALS
Case No 6008069/2024
Between
Miss K JohnsonClaimantTransport For London and OthersRespondent
Before
Employment Judge DateDate 23 February 2026
JUDGMENT
[1]The claim of unfair dismissal against the first respondent is dismissed.[2]The claimant’s remaining claims will proceed to a hearing on .
REASONS
[1]Miss Johnson has brought claims of unfair dismissal and disability discrimination against Transport for London (TfL) and against Reed, the employment agency who supplied her to work there. The second respondent is Mr Giles who is employed by TfL and the fourth respondent is Mr Clark who is employed by Reed. Case Number 6008069/2024 2 of 4[2]This hearing was listed to consider whether or not to strike out the claim of unfair dismissal against TfL on the basis that Miss Johnson was not an employee of theirs.[3]The essential position is not in dispute: Miss Johnson had a contract with Reed to supply her services to TfL and they paid her, while Reed had a contract with TfL.[4]Mr Giles provided a witness statement setting out in more detail the working arrangements and there was no dispute about his account. In summary, Miss Johnson worked as a Topographical & Driver Skills Assessor within TfL’s Driver Assessment Team from 22 February 2022. Their role is to assess candidates for driving jobs. The tests are conducted on a computer and the Assessors invigilate the tests to ensure fair play. They generally worked for five days a week, mainly in the office but with some home working. In May 2024 there were about 15 Assessors in the team, of whom nine were agency workers.[5]They had to fill out a time sheet which Mr Giles approved before it went to Reed, who made the payments on a weekly basis. They also sorted out the annual leave arrangements. And if there was any performance or disciplinary issue, this would be referred to Reed for them to manage, give warnings, or terminate the contract.[6]In short, as an agency worked, Miss Johnson was as integrated into the workforce as far as reasonably practicable given the different nature of the contractual arrangements but it was a traditional agency/end-user arrangement.
Legal Principles
[7]This is an area of law which is quite technical and confusing. Before dealing with the key issue in the application I will try to set out the legal framework. Firstly, this is an application relating solely to the complaint of unfair dismissal, which is a right contained in the Employment Rights Act 1996. That is quite separate from the rights under the Equality Act 2010, which provides protection against discrimination.[8]The Equality Act has specific provisions dealing with agency workers. Section 41 provides that the organisation they actually work for, known as a Principal, can be liable for discrimination of various sorts. Section 55 provides that Reed, as an employment service provider, can be liable too, in various respects.[9]But that is all my way of background. It does not mean that similar arrangements have to be implied under the Employment Rights Act 1996.[10]Another frequent source of confusion relating to the rights of agency workers is that the Agency Workers Regulations 2010 give them equivalent rights to their employed colleagues in some respects, such as the right to be notified of Case Number 6008069/2024 3 of 4 vacancies and the right to be paid at the same level after 12 weeks. But that does not change their position from an agency worker to an employee. The fundamental distinction remains, subject to these additional statutory protections.[11]The starting point in considering whether a contract of employment can be implied in these circumstances between Miss Johnson and TfL is the case of James v London Borough of Greenwich [2008] IRLR 302. That concerned a long-term agency worker who was arguing that she had become an employee over the passage of time. Ms James worked for the council as a care worker for a number of years, first as a direct employee and then for the last few years through a succession of agencies, but always working in the same role. She went off sick for a period and while she was off, the council replaced her with another agency worker. When she returned she was told that she was no longer required. On that basis she brought a claim for unfair dismissal.[12]The outcome was very clear that that was not a viable possibility. The longstanding legal position is that where there is no written contract, a contract can only be implied in limited circumstances. In fact, it needs to be necessary to do so to make sense of the working arrangements in question. In that case there was no such need. Ms James had a contract with the agency. The agency had a contract with the council. There was nothing doubtful or unclear about those provisions and so no need to imply any alternative arrangements.[13]That clear position was reinforced this year by the Court of Appeal in the case of Ryanair DAC v Lutz [2025] EWCA Civ 849. Lord Justice Underhill, at paragraph 45, gave a clear endorsement of the principle in James. He said it decided: “… that the question whether the claimant was employed by the authority falled to be determined by ordinary contractual principles, and that since her provision of services to the authority was fully explicable by reference to the contractual arrangements between her and the agency there was no basis for implying any contractual relationship between her and it.”[14]That may seem unfair to someone in Miss Johnson’s position who is doing the same job and working for the same manager over a lengthy period of time as someone with a contract of employment, but the position remains that it is not necessary to imply a contract of employment in those circumstances - the working arrangements are fully explained by the contracts which do exist, i.e. the contract between her and Reed on the one hand and the contract between Reed and TFL on the other.[15]In fact, there is another contractual principle which is that a term or a contract cannot be implied where it would contradict a written term. In this case, Ms Johnson’s contract with Reed provides that she was “not an employee of the Client” [66]. Case Number 6008069/2024 4 of 4[16]The only circumstances in which a different conclusion might be reached would be if existing contracts were a sham, in the sense that they did not match the actual working arrangements, but that has not been suggested and there seems no basis for that view.[17]Accordingly, and for all of the above reasons, the claim of unfair dismissal against the first respondent is dismissed.