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Peter Olszewski
Peter Olszewski,
ASSOCIATE - SOLICITOR
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Can a worker on a temporary zero hours contract be an agency worker?
04 September 2018

Love them or hate them zero hours contracts form an integral part of today’s modern society and are here to stay. Generally, the issue is whether the person providing services under the zero hours contract is an employee or a worker.  However, in Brooknight Guarding Limited v Matei, Mr Matei argued that he was an agency worker entitled to the same basic working and employment conditions as other permanent employees working at this site.

The facts

Mr Matei (M) was engaged by Brooknight Guarding Limited (BGL) as a security guard providing guarding services to clients of BGL. He had a zero hours contract with BGL and was required to work on an ad-hoc basis at any site BGL sent him to. BGL predominantly supplied security guards to Mitie Security, at a site in London and it was at this site that he spent the majority of his 21 months working for BGL. At the end of this period he was dismissed by BGL.

M pursued a claim against BGL in connection to his dismissal and sought to rely upon Regulation 5 of the Agency Workers Regulations 2010 which, after 12 weeks, entitled him to the same basic working and employment conditions as if he had been employed by the hirer (Mitie) directly. BGL rejected M’s claim and instead stated he was a permanent employee of Mitie having been sub-contracted to work for Mitie indefinitely. 

The Employment Tribunal found in favour of M and ruled that BGL, whose business was to provide security guards to clients on an ad hoc basis was a temporary work agency. As a result it found that M, having worked for more than 12 weeks at Mitie’s site was entitled to the same basic working and employment conditions as Mitie’s employees doing the same job.

BGL appealed the ET decision arguing the ET had erred in its judgment by failing to apply the correct test when determining M’s zero hours contract and treating M’s relatively short period of service as determinative.

The EAT’s decision

The EAT on considering the appeal upheld the first instance decision of the ET. 

In particular the ET held that the nature of M’s work was key to determining his actual employment status; 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 ET instead considered additional factors such as M having to be available to work for any BGL client as well as the fact that M was engaged by BGL as a “cover security guard” meaning he could not have been employed on a permanent or indefinite arrangement by Mitie as BGL alleged, but simply provided the cover as and when required. BGL’s own evidence contributed to the EAT’s finding as it characterised the role as being on a “required only basis.”

The importance to employers

This judgment is of importance to any employer who either supplies workers or hires the services of workers such as sub-contractors or consultants from other companies specialising in the supply of workers. It demonstrates that if individuals are being supplied on a temporary basis to a hirer then there is a risk that they might be found to be agency workers, if the business is the supply of labour. What is clear is that trying to avoid the worker looking like an agency worker is not going to succeed as the Tribunal will look to the substance of the relationship rather than the forms used. 

As a matter of good practice, if a company supplies workers it should:

  • Keep a track of how long a worker has been supplied to each hirer.  If this is longer than 12 weeks and the worker has been carrying out the same role ensure you are familiar with the status and rights the worker may acquire.
    Where such status and rights have been acquired ensure the agency worker is not treated less favourably than a comparable permanent employee with regard to working and employment conditions. 
  • If a business wishes to avoid individuals accruing rights at 12 weeks it will need to ensure that the individuals are moved and that it does not fall foul of the anti-avoidance provisions in the Agency Workers Regulations.

If you would like to discuss any issues relating to zero hours contracts, please contact Peter Olszewski on 0118 952 7284 or email [email protected]

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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