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How important is the temporary nature of assignments in determining whether an employee is an agency worker?

News / / How important is the temporary nature of assignments in determining whether an employee is an agency worker?

In Brooknight Guarding Limited v Matei [2018], the EAT considered the importance of the temporary nature of an assignment in determining whether a worker on a zero hours contract is an agency worker.

Background

Under the Agency Workers Regulations 2010 (AWR), after 12 weeks’ continuous employment, agency workers are entitled to the same terms and conditions as an employee doing the same job as the agency worker.

Facts

Mr Matei was employed by Brooknight Guarding Limited (Brooknight) as a security guard on a zero-hours contract for 21 months. Included in his contract was a flexibility clause, enabling Brooknight to assign him to different sites as required. Apart from one short stint with another end user, Mr Matei was generally supplied to Mitie Security Ltd (Mitie).

Following his dismissal from employment on 6 October 2016, Mr Matei brought a claim against Brooknight for breach of his employment rights relying on protection under the AWR. Brooknight argued that, despite Mr Matei being on a zero-hours contract with them, he was a permanent employee of Mitie and therefore Brooknight had no liability towards him.

Employment Tribunal

The ET first considered whether Brooknight was a temporary work agency. It held that Brooknight was clearly a company “engaged in the economic activity of supplying individuals to work temporarily for, and under the supervision and direction of, a hirer”. The hirer in Mr Matei’s case being Mitie.

The ET then considered whether Mr Matei was an agency worker. In doing so, whilst it had regard to the nature of his contract, i.e. it being zero-hours and his relatively short period of employment, it did not consider these determining factors. Instead, it focused on whether Mr Matei worked for Mitie on a temporary (rather than a permanent) basis (known as the "Moran" test of temporariness). The decisive factor was that Mr Matei was supplied to Mitie to provide cover on an ‘ad hoc basis’ rather than an indefinite one. This finding was supported by Mr Matei’s evidence, describing how he was at Mitie’s ‘beck and call’ and could be placed at any one of its sites, and by Mitie’s description of the use of Mr Matei’s services as on a “required only basis as and when requested by an authorised Mitie manager”.

On the basis of the above, the ET found that Mr Matei was an agency worker supplied by Brooknight to work temporarily for Mitie. As such, Mr Matei was found to be protected under the AWR.

Employment Appeal Tribunal

Brooknight appealed the ET’s finding, arguing that the ET had incorrectly focused on the form rather than function of Mr Matei’s employment agreement. Namely, that whilst he may have been on a zero-hours, location-flexible contract, he had essentially worked full-time for Mitie and knew “that Mitie was where he worked”.

Distinguishing the facts of this case from Moran v Ideal Cleaning Servies Ltd and Celanese Acetate (the case from which the Moran test of temporariness is drawn) where cleaners were found not to be agency workers because they had been working for the same end user for many years and their contracts specified their place of work, the EAT confirmed that there was never any suggestion of an indefinite nature to the relationship between Mr Matie and Mitie.

The EAT accordingly dismissed the appeal, holding that the ET was correct to find Mr Matei to be an agency worker, and that the Moran test of temporariness had been correctly applied.

Comment

Whilst findings will always be fact specific, this case illustrates that the key aspect in determining whether an employee is an agency worker is the ‘temporariness’ of their relationship with the hiring party. The courts will always have regard to a worker’s actual working practice rather than the form or content of their contract.

If a worker is supplied by a temporary work agency and works for an end user on an ad hoc basis e.g. working as cover or having different places of work, they will be an agency worker for the purposes of the AWR.

Francesca Jus-Burke

Francesca Jus-Burke Senior Associate

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