Employee on zero hours contract found to be an agency worker

In the case of Brooknight Guarding Ltd v Matei, the Employment Appeal Tribunal (“EAT”) has provided guidance on the test for determining whether or not an individual is an agency worker. This case is interesting as the individual was found to be an agency worker despite not being supplied by what we would usually think of as an agency. 

Facts

Brooknight employed Mr Matei as a security guard on a “zero hours” contract. He had worked for them for around 21 months and during this time was generally, but not exclusively, supplied to carry out work for another security firm, Mitie, which provided services to Citi Group. 

Following his dismissal, Mr Matei claimed that he was an agency worker under the Agency Workers Regulations 2010 (“the Regulations”) and the Employment Tribunal (“ET”) agreed with him, finding that he was an agency worker.

Brooknight appealed to the EAT which upheld the ET’s decision.

An individual is an agency worker under the Regulations if they are supplied by a temporary work agency to carry out work under the supervision and direction of a hirer on a temporary basis. The EAT held that a key part of this test is the nature of the work that the individual is tasked with carrying out, and in particular if that work is carried out on a temporary basis.

In this case the evidence clearly showed that Mr Matei had been supplied to Mitie only on a temporary basis as and when required, and that during his employment he had also been supplied by Brooknight to work for other clients. In each case he worked under the supervision and direction of the client he had been supplied to. 

On this basis Mr Matei was an agency worker for the purposes of the Regulations. This meant that he benefited from the various rights conferred by the Regulations, such as the right to be engaged on the same terms and conditions as permanent staff of the hirer after he had worked for them for 12 weeks.

Comment

There was no discussion, in this case, about the fact that Brooknight was a security company, not a conventional agency. This did not seem to have an impact on the decision that Mr Matei was an agency worker. Brooknight did fall within the definition of a ‘temporary work agency’ because it was engaged in the economic activity of supplying individuals to work temporarily for a hirer.

This decision could alert employees and workers of other sorts of companies in the service industry (such as cleaning companies) that they could seek to claim agency worker status where they are supplied on a temporary basis.

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