Agency worker unable to claim unfair dismissal against NHS trust: no implied contract
An agency worker who spent nearly three years at an NHS trust was unable to bring an unfair dismissal claim because the tribunal found no implied employment contract existed. The claim was dismissed.
1 min read · Last updated 18 May 2026
Case details
- #agency-worker
- #implied-contract
- #tripartite-agreement
- #employment-status
- #unfair-dismissal
Key facts
- The claimant worked at the second respondent's premises under a tripartite agency agreement.
- The claimant accepted she had no express contract with the second respondent.
- The tripartite contract was renewed in July 2019 and the claimant remained in post until January 2022.
- The claimant was paid by the third respondent, who was paid by the first respondent, who was paid by the second respondent.
- The second respondent requested a replacement after the claimant's placement ended.
Timeline
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Tripartite contract commenced
The claimant entered into a tripartite contract with the first and third respondents for an initial three-month period.
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Tripartite contract renewed
The contract was renewed for a further seven weeks, documented in a materially similar signed document.
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Placement terminated
The claimant's placement with the second respondent ended in January 2022.
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Replacement requested
The second respondent requested a replacement from the first respondent, who sourced and supplied another worker.
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Hearing day 1
The employment tribunal heard evidence and submissions on the issue of whether the claimant was an employee of the second respondent.
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Hearing day 2 and judgment
The tribunal concluded that no implied contract of employment existed and dismissed the unfair dismissal claim.
The legal issue
The tribunal had to decide whether an agency worker who had no express contract with the NHS trust where she worked was nevertheless an 'employee' of that trust by virtue of an implied contract, so that she could bring an unfair dismissal claim.
The outcome
The tribunal dismissed the unfair dismissal claim.
The key reason was that the tripartite agency agreement – between the worker, the agency (Max20 Ltd) and the umbrella company (BSL Umbrella Ltd) – did not give rise to an implied contract of employment with the NHS trust (MerseyCare NHS Foundation Trust). The trust was defined as an 'end user' with only third-party rights, and the worker accepted she had no express contract with the trust.
No compensation was awarded as the claim failed at the jurisdictional stage.
Lessons & takeaways
- Agency workers should be aware that working on site for a long period does not automatically create an employment relationship with the host organisation.
- If you want to bring an unfair dismissal claim, you must first establish that you are an employee of the respondent – a tripartite agency arrangement often prevents this.
- The terms of the agency agreement are crucial: if the host is defined as an 'end user' with limited rights, it is unlikely to be your employer.
- Seek legal advice early if you believe you may have an implied contract – the test is strict and fact-specific.
A familiar arrangement, a familiar outcome
This case illustrates the difficulty agency workers face when trying to bring employment claims against the organisations where they actually perform their work. The claimant had worked at MerseyCare NHS Foundation Trust for nearly three years under a tripartite agreement involving an agency and an umbrella company. Despite the length of the placement, the tribunal found that no implied contract of employment existed between her and the trust.
What the trust could have done differently
From the trust's perspective, the tripartite structure was designed precisely to avoid creating an employment relationship. The tribunal noted that the master agreement defined the trust as an 'end user' with only third-party rights under the Contracts (Rights of Third Parties) Act 1999. To create an implied contract, the trust would have had to act in a way inconsistent with that structure – for example, by directly controlling pay or taking on obligations beyond day-to-day direction. The trust did not cross that line.
Why this matters for similar claims
For agency workers, the message is clear: length of service alone does not turn you into an employee of the host. The legal test for an implied contract requires evidence that the parties intended to enter into a direct employment relationship, which is hard to prove when a formal tripartite agreement is in place. Anyone in a similar position should consider whether their claim might be better brought against the agency or umbrella company, or whether they fall within the narrower category of 'worker' for other rights such as holiday pay.
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