In the case of Matei v Brooknight Guarding Limited, the Employment Appeal Tribunal (EAT) held that a Claimant engaged on a zero hours contract, and deployed to work for a third party, was an agency worker for the purposes of the Agency Workers Regulations 2010.
The Respondent is a security company which employs security guards on zero hours contracts to guard premises across London – with most being supplied to Mitie Security Ltd.
The Claimant had been engaged by the Respondent in this way for 21 months. The Claimant’s contract included a flexibility clause which allowed the Respondent to assign him to different sites as required. In practice the Claimant was assigned to work at a site of Mitie for the majority of his tenure.
The Claimant argued that this arrangement meant he was an agency worker, and accordingly entitled to enhanced rights.
The Agency Workers Regulations 2010 (“AWR”) state that once an agency worker has undertaken the same role, whether on one or more assignments, with the same hirer for 12 continuous calendar weeks, the worker will be entitled to the same basic working and employment conditions as comparable employees of the hirer.
As the Claimant had worked in excess of 12 weeks with Mitie, he argued that he was entitled to the benefits afforded by AWR.
The Respondent argued that the Claimant was not entitled to this protection because it was not a temporary work agency which supplied individuals temporarily to hirers. It claimed that the Claimant had, in fact, become a permanent employee of Mitie given the duration of his placement there.
The Employment Tribunal agreed with the Claimant.
The Tribunal considered the nature of the Claimant’s work and accepted that he worked as cover, finding he was “at the beck and call of the Respondent” and could be placed at any one of its sites, as and when required.
The Tribunal accordingly held that AWR applied because the Respondent was a company engaged in the economic activity of supplying individuals to work temporarily for, and under the supervision of hirers.
The Respondent appealed, disagreeing with the Tribunal’s approach.
The EAT dismissed the Respondent’s appeal and stated that the Tribunal had applied the correct test in determining whether or not the Claimant was an agency worker. It found that as the Claimant was required to work for the Respondent “as and when required”, he could not be deemed to work permanently for Mitie.
The case suggests that attempts to argue that an agency worker is permanently employed by an end user are difficult where the employment agency maintains flexibility over their role. This can be the case even where the individual has worked for an end user for an extended period of time, as with the 21 months in this case.
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