118: A cover security guard on a zero hours contract was in fact an ‘agency worker’

The Agency Worker Regulations 2010 define a temporary work agency as a business which supplies agency workers to work temporarily for and under the supervision and direction of a hirer. Agency workers are entitled to the same basic employment conditions as comparable permanent staff of the hirer after 12 weeks’ service. This rather broad definition means that a business may not be aware that it is acting as a temporary work agency, as in the case of Brooknight Guarding Ltd v Matei, where the Employment Appeal Tribunal (EAT) has ruled that a cover security guard was an agency worker.

Mr Matei was employed by Brooknight as a cover security guard on a zero hours contract until his dismissal after 21 months’ service. Under his contract, Brooknight could assign him to guard premises for third parties at different sites as and when required. However, apart from one short assignment, he worked exclusively at sites controlled by Mitie Security Ltd. Mr Matei claimed that he was an agency worker and therefore entitled to the same basic working and employment conditions as Mitie’s permanent staff. Brooknight argued that he had been subcontracted to work for Mitie on an indefinite basis and was therefore a permanent worker of Mitie.

The Employment Tribunal held that Brooknight came within the definition of a temporary work agency since it was engaged in the economic activity of supplying individuals to work temporarily for and under the supervision and direction of a hirer. In addition, Mr Matei was a temporary worker since he was supplied to provide security cover for Mitie as and when required; worked under a zero hours contract; and had been employed by Brooknight for a relatively short time.

Brooknight appealed, arguing that the Employment Tribunal had failed to apply the correct test when deciding whether Mr Matei was a temporary worker, and had wrongly treated the zero hours contract and his relatively short period of service as determinative. However, the EAT agreed with the Tribunal’s reasoning. The key consideration was whether the work for which Mr Matei was supplied was temporary in nature. The Tribunal had found that Mr Matei had been supplied to provide cover for Mitie on an ad hoc basis, as and when required. It was therefore clear that he was working temporarily for the duration of the absence being covered. The Tribunal had also considered Mr Matei’s zero hours contract and relatively short service to be relevant. This was the correct legal test, and Mr Matei was a temporary agency worker. Since he had completed 12 weeks’ continuous service up to the date of his dismissal, he was therefore entitled to the same basic working conditions as the security officers employed by Mitie at the same site.

This case illustrates that any company which supplies individuals to work temporarily for and under the supervision and direction of a hirer can be a temporary work agency under the Agency Worker Regulations. In order to reduce the risk of claims, employers should review contracts and working arrangements to ensure that workers are being treated correctly. Individuals who are supplied on a permanent or indefinite basis will not satisfy the definition of an agency worker.  However, as the EAT stressed in this case, whether an arrangement is classed as indefinite or permanent will depend on the specific facts and circumstances.