The definition of an agency worker has once again been questioned by the Employment Appeals Tribunal (EAT).
In Brooknight Guarding Ltd v Matei the EAT confirmed that Matei had been operating under an open-ended zero-hours contract and was engaged to “work temporarily”. As such, he was entitled to bring a claim under the Agency Workers Regulations, even though he predominantly worked for the same client as a security guard over a 21-month period.
The employment tribunal (ET) found that Matei’s contract included a flexibility clause that enabled the Respondent (Brooknight Guarding) to assign him to different sites as required. However, Matei generally worked for Mitie at the Citi Group site in London.
The ET found that he was being used as a ‘cover security guard’ and concluded that he was an agency worker and thus able to bring a claim under Agency Worker Regulations. The respondent appealed, contending that the tribunal had failed to apply the correct test and had wrongly treated the ‘zero-hours’ contract and Matei’s short period of service as determinative.
The EAT agreed with the tribunal and dismissed the appeal. It highlighted that in determining whether the claimant (Matei) was an agency worker, the question was whether he had been supplied to work temporarily.
The judgment states: “Although the ET had considered the nature of the claimant’s contract and relatively short period of employment to be relevant, it had not treated those factors as determinative; it had, rather, looked at the nature of the work for which the claimant had been supplied and had found that it was to provide cover for Mitie (the end client) as and when required.
“That was a finding supported not only by the claimant’s evidence but also by Mitie’s description of the services provided. The ET had thus applied the correct legal test and reached a permissible conclusion that the claimant was an agency worker.”
This is another case where the definition of a “temporary” worker has been scrutinised with regard to the Agency Workers Regulations – “temporary” is not defined by the Regulations.
Writing for HR Law Live Charles Pigott, Professional Support Lawyer at Mills & Reeve, commented: “Following on from a similar approach in a number of gig economy cases, this latest decision is another example of the EAT encouraging employment tribunals to test the evidence given as to what occurred in practice against the relevant contractual documents.
“Putting it another way, an employment agency cannot necessarily defeat the application of the Regulations by giving the workers it supplies open-ended employment contracts, particularly if they are zero-hours contracts.”
