Zero hours security guard was agency worker and entitled to same basic terms as hirer's permanent employees

24th August, 2018

The Employment Appeal Tribunal in Brooknight Guarding Limited v Matei has held that a security guard on a zero hours contract was an agency worker under the Agency Worker Regulations 2010, and was not a permanent employee.

The Claimant, Mr Matei, was employed by Brooknight, the Respondent, as a security guard on a zero hours contract, until his dismissal after 21 months of employment. During his employment, he was assigned to different sites for various clients, but mainly worked at sites controlled by a firm called Mitie.

The Claimant claimed that he was an agency worker under the Regulations and accordingly entitled, following 12 weeks of service, to the same basic working and employment conditions as Mitie’s staff. It was the Respondent’s view that Mr Matei worked permanently for Mitie, having been sub-contracted to work there indefinitely. The Employment Tribunal agreed with the Claimant and held that Brooknight was a ‘temporary work agency’ pursuant to the Regulations, and Mr Matei was supplied to work temporarily for the hiring company. This meant that Mr Matei was not a permanent employee, but an agency worker, rendering Brooknight liable for a breach of the Regulations.

At the Respondent’s appeal, the EAT took the same view as the Tribunal. It held that the nature of the claimant’s work was key to determining his status as an agency worker; the fact he was on a zero hours contract and had not been employed for very long were relevant factors to be taken into account, but were not determinative. The fact he was employed as a “cover security guard” meant he could not have been employed on a permanent or indefinite arrangement but simply provided the cover as and when required. The Respondents’ own evidence contributed to this finding, as they characterised the role as being on a “required only basis.”

The EAT acknowledged that each case of this nature will be fact sensitive, and it will need to be assessed whether the arrangement can be described as being of an indefinite or permanent nature. The Tribunal, in this case, was entitled to find that it was not.

Nicola Butterworth comments:

“This case will be of importance to employers who supply individuals to other companies and may be of relevance to businesses that engage contractors/freelancers via limited companies. Agency workers are entitled, after working for 12 weeks in the same job with the same hirer, to be treated no less favourably than a comparable permanent employee in respect of pay and basic working conditions. Businesses should review their existing arrangements to establish whether there is a risk that anyone who works for them on this basis could be treated as an agency worker to ensure that they are receiving the correct treatment. Our team can provide any further information you may require.”

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