Hello and welcome back to another case law update. Last week we looked at the principle of iniquity and discrimination. This week we are looking at a specific group of workers: agency workers.

Agency workers are workers who have a contract with an agency but work temporarily for end user businesses. When an agency worker is on assignment they are temporarily under supervision of the end user which has hired them but are still employed by their agency. Many agency workers also work on zero-hour contracts. It is important as a worker to recognise whether you classify as an agency worker to understand what rights you are entitled to. This leads on to today’s question:

Can an employee be an agency worker under the Agency Worker Regulations and, after 12 weeks service, be entitled to the same terms and conditions as an employee of the end user doing the same job?

Brooknight Guarding Ltd, the Respondent, is a security company which employs security guards who work under zero-hour contracts.  The role of the security guards is to guard premises on a variety of sites around London. The Claimant, Mr Matei, worked for Brooknight as a security guard and he was assigned to different clients when required but mainly worked for the client Mitie. Mr Matei was dismissed 21 months later.

Mr Matei claimed that he was an agency worker and therefore entitled to the same rights as an employee who worked directly for Mitie as a security guard under the Agency Worker Regulations 2010. Brooknight Guardings Ltd argued, however, that Mr Matei worked permanently for Mitie. The ET rejected this claim because they found that Brooknight Guardings was a temporary work agency. The tribunal agreed with Mr Matei and held that he was an agency worker for the purposes of the Agency Workers Regulations 2010 under Regulation 4:Brooknight Guardings was a company engaged in the economic activity (operating for a profit) of supplying individuals to work temporarily for, and under the supervision and direction of, a hirer. The Respondent appealed.

At the Employment Appeal Tribunal (EAT), the appeal was dismissed. The issue of whether Mr Matei was an agency worker came down to whether he was working temporarily. Brooknight Guardings Ltd argument relied on the idea that an employee could work under a zero-hour contract and could still be a permanent employee as opposed to temporary. This claim was again rejected at the EAT. The position held by Mr Matei was temporary as it was not indefinite and even the employer’s evidence suggested that the work was temporary. Mr Matie was found to be an agency worker and therefore did have the right to the same terms and conditions as those working directly for Mitie as a security guard.

Takeaway Point:

An agency worker can be on a zero-hour contract and be temporary but still gain rights after 12 weeks service at an end user. In this case the right was to the same terms and conditions as the security guard employed directly by the end user, Mitie.