The Employment Appeal Tribunal (EAT) recently held that a worker on a zero hours contract satisfied the legal definition of an agency worker. This meant that he was entitled to the protections afforded by the Agency Workers Regulations 2010 (the Regulations). The EAT ruled that whether the work done by a worker is of a temporary or permanent nature is the key to deciding whether an employee qualifies as an agency worker.

Facts

In Brooknight Guarding Ltd v Matei Mr Matei was hired by the employment agency Brooknight Guarding as a security guard on a zero-hours contract. According to a flexibility clause in his contract, he could be assigned to different sites and clients as needed. However, for most of his employment he was supplied to Mitie Security.

Mr Matei was dismissed after 21 months. He claimed that he was an agency worker who had been assigned to the same client for longer than 12 weeks and he was therefore entitled to the same rights as a security guard employed directly by Mitie.

Brooknight Guarding argued that he worked permanently for Mitie, and therefore did not qualify as an agency worker. An employment tribunal (ET) dismissed this argument and ruled that Mr Matei was indeed an agency worker. Brooknight Guarding appealed.

The EAT’s decision

The EAT upheld the ET’s decision that Mr Matei was an agency worker and considered that the nature of the work (i.e. whether it is temporary or permanent in nature) is key to determining whether someone is an agency worker.

The ET had determined Mr Matei’s status as an agency worker based on the temporary nature of the work – specifically, he was supplied to Mitie as and when needed, not on an indefinite or permanent basis – and the EAT agreed that this was the right decision. The appeal was dismissed.

Comment

Because he was deemed to be an agency worker, under the Regulations Mr Matei had gained the valuable right to the same pay and working conditions as any security guard employed directly by Mitie.

This is a timely reminder for all parties that just because a worker is employed on a zero-hours contract does not mean that they aren’t covered by statutory employment protections for agency workers (and others).