The law defines an agency worker as someone who works “temporarily” for a hirer. In Brooknight Guarding Ltd v Matei, the Employment Appeal Tribunal (EAT) held that an individual on a zero-hours contract can also be an agency worker if their position can be shown to be temporary. 

Basic facts

Mr Matei worked as a security officer on a zero-hours contract for Brooknight Guarding which supplied security guards to work temporarily for hirer companies. Although he could be placed at any site in London, he worked mainly for Mitie Security Ltd at its Citi Group site as a cover security officer and on occasion for another company called Wilson James.

He worked continuously from 27 December 2014 until his dismissal on 6 October 2016, apart from a week in September 2015 and two weeks in June 2016 when he was not required to do any work and was not paid for those periods.

He claimed that, under regulation 5 of the Agency Workers Regulations 2010, he was entitled to the same basic working conditions as the security officers employed by Mitie Security Limited at the site where he was working. Brooknight Guarding claimed firstly that it was not a temporary work agency; and secondly that Mr Matei worked permanently for Mitie at Citi Group in London.

Relevant law

Regulation 3(1)(a) of the Agency Workers Regulations 2010 defines an agency worker as an individual who is supplied by a temporary work agency to work temporarily for a hirer and (b) has a contract with a temporary work agency.

Regulation 4(1)(a) defines a temporary work agency as any person engaged in the economic activity of “supplying individuals to work temporarily for and under the supervision and direction of hirers”.

Regulation 5 states that an agency worker is entitled to the same basic working and employment conditions as a permanent worker, subject to regulation 7 which required individuals to have worked continuously for the same employer for 12 weeks in order to qualify. 

Tribunal decision

The tribunal held that Brooknight Guarding was clearly a company engaged in the economic activity of supplying individuals - namely Mr Matei and others - to work temporarily for a hirer.

It was also clear that Brooknight Guarding had employed Mr Matei under a zero-hours contract that gave the company complete discretion in terms of the hours of work he was required to do and the sites where he could be placed. As such, he was an agency worker.

EAT decision

Dismissing the appeal, the EAT held that it was necessary to identify whether the work was temporary (as required under regulation 3) or permanent. In answering that question, the tribunal had to have regard to the work that Mr Matei did, as a matter of practice.

Although the tribunal had considered the nature of his contract and relatively short period of employment to be relevant, it had not treated those factors as determinative. Instead it had looked at the nature of the work for which Mr Matei had been supplied and had found that it was to provide “cover” for Mitie as and when required. As such, the tribunal was entitled to find that he had been used as a “cover security guard”.

In any event the company itself (Mitie) described the services he was required to provide as being on a “required only basis” and usually “connected to additional cover that our customer base has requested”. The fact that he worked on a zero-hours contract was a relevant factor for the tribunal to take into account but was not the determining factor as to the question of his employment status.

The tribunal had therefore applied the correct legal test and was correct to conclude that Mr Matei was not a permanent worker but an agency worker for the purposes of the 2010 regulations.

Comment

Temporary or permanent? That is the question! The key issue in determining agency worker status was whether the nature of the work carried out by Mr Matei could properly be regarded as temporary i.e.not permanent.

The tribunal had considered the nature of Mr Matei's contract and relatively short period of employment to be relevant, but it had not treated those factors as determinative. Instead it focused on the nature of the work he did. He was supplied to provide cover for Mitie on an “as and when required” basis rather than on a permanent or indefinite basis. This can be contrasted with the EAT decision in Moran and others v Ideal Cleaning Services Ltd and anor (weekly LELR 358) where it was concluded that agency workers permanently assigned to an end-user/hirer were not covered by the Agency Workers Regulations.