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Employee status and agency workers: The nature of the work is the key consideration

An employee on a temporary zero hours contract should be classed as an agency worker, the Employment Appeal Tribunal found in Brooknight Guarding Limited v. Matei.

Background

Brooknight Guarding Limited employed Mr Matei as a security guard on a zero hours contract for 21 months. He worked mostly for Mitie Security Ltd, although not exclusively, and Brooknight could assign him to different clients. Mr Matei claimed he should be classed as an agency worker under the Agency Workers Regulations 2010 (Regulation 3(1)). As a result, he said he should be entitled to the same basic working conditions as Mitie staff after 12 weeks of service. The ET found Brooknight was using Mr Matei as a ‘cover security guard’, rather than an employee on a permanent basis, and so the ET classed him as an agency worker. Brooknight appealed the decision to the EAT on the basis that the employee could work on a zero hours contract and still be a permanent employee of Mitie.

Decision

The EAT agreed with the Tribunal’s decision and dismissed Brooknight’s appeal. The Tribunal had considered the nature of Mr Matei’s contract and short period of employment, but these factors were not the determining factors; the focus was on the nature of the work and whether it was temporary. Brooknight’s own correspondence with Mr Matei itself suggested the relationship was temporary. The Tribunal was therefore right to conclude that Mr Matei was an agency worker and entitled to the same terms and conditions as those working directly for Mitie.

Conclusion

The decision informs us that the key issue a tribunal will consider when determining agency worker status is the nature of the work carried out and whether the work is permanent or temporary. The EAT considered the nature of Mr Matei’s contract and relatively short period of employment, but they were not determinative. Employment businesses will need to be mindful that an agency worker on a zero hours contract can still gain rights under the 2010 Regulations after 12 weeks’ service, if the nature of the work is temporary. End users will also have to take note, since they can be held liable for any breach of week 12 rights under the Agency Workers Regulations.

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