The Employment Appeals Tribunal last week overturned a decision that ruled that an agency worker who had been dismissed from a Costain site last July should be recognised as an employee of Costain and as such could claim he was unfairly dismissed.
Dave Smith, who was also a safety representative for construction union UCATT, claimed he had been dismissed from a Costain site in Essex, where he was engaged as an engineer, after he raised concerns about the site's safety procedures.
However, the appeals tribunal ruled that because Smith worked through an agency he was deemed self-employed, and as such could not continue his claim against Costain for unfair dismissal.
A spokesman for Costain said: "This is a particularly important case for the industry as it reaffirms that agency workers are not employees." However, UCATT general secretary George Brumwell said the decision would mean that union safety representatives engaged by major contractors through agencies could be sacked at any point, simply for complaining about standards on site.
Brumwell said: "The legal technicalities used by Costain do not hide the fact that leading employers in the industry are paying nothing more than lip-service to initiatives like the Working Well Together campaign.
"If the industry is serious about safety, it has to recognise the value of safety representatives and stop abusing grey areas in law to victimise them." UCATT official Ron McKay added: "The ruling means that conscientious site safety reps will be fearful of their employment if they ask too many questions. It's a worrying ruling.
"The vast majority of construction workers in the South-east still find their way on to sites through agencies. This ruling effectively means that these people have no recourse in law if a major contractor decides to kick them off site." Brumwell said UCATT was considering an appeal but in the meantime would seek talks with government to press for legislation to protect union safety representatives.