Cover security guard on zero hours contract protected by Agency Worker Regulations

The Employment Appeal Tribunal (“EAT”) held in Brooknight Guarding Ltd v Matei UKEAT/0309/17 (26 April 2018, unreported) that an employee on a zero hours contract had agency worker status due to the temporary nature of his assignment.

Brooknight Guarding Limited is a security company that employs security guards on zero hour contracts and assigns them temporarily to third party businesses. They had employed the Claimant as a security guard on a zero hour contract for 21 months. Although the Claimant was generally (but not exclusively) supplied to Mitie Security Ltd, to provide security services at the Citi Group site in London, his contract had included a flexibility clause enabling Brooknight to assign him to different sites as required.

The Employment Appeal Tribunal held that an employee on a zero hour contract had agency worker status under Regulation 3(1) of the Agency Worker Regulations 2010. The EAT held that the key issue in determining agency worker status was the nature of the work carried out by Mr Matei and whether it was on a permanent or temporary basis. The type of contract he worked under and the length of his employment were considerations but not determinative factors.

As Mr Matei was supplied to provide cover for Mitie as and when required, rather than on a permanent or indefinite basis, he was held to be a “cover security guard” and classed as an agency worker for the purposes of the regulations. This decision differs from Moran and others v Ideal Cleaning Services Ltd and another UKEAT/0174/13 as in that case the agency worker was permanently assigned to an end-user and were not covered by the Agency Worker Regulations 2010.

The Agency Worker Regulations provide that all agency workers must be able to access a hirer’s collective facilities and have access to information about its job vacancies from day one. After completion of a 12-week qualifying period, agency workers are entitled to the same “basic working and employment conditions” that they would have been entitled to had they been recruited directly by the end-user. This includes pay, working time, night work, rest period, rest breaks and annual leave. The only exemption to the principle of equal treatment in relation to pay is if after the 12 week qualifying period an agency worker enters a permanent contract with a temporary work agency where they are paid in full between assignments.

Employers should be reviewing their commercial arrangements with organisations that provide temporary zero hour workers to ensure they are engaged on terms comparable with the employer’s own staff as this case clarifies agency status in relation to workers engaged on zero hour contracts. The key difference whether agency worker status exists is if the worker is engaged to the end-user permanently or temporarily. It highlights that those engaged temporarily to the end-user after 12 weeks service are entitled to  the same terms and conditions as an individual employed directly by the end-user. This includes annual leave, rest periods and pay (pay is subject to the worker not being engaged full time and paid between assignments by the temporary work agency).