Employment Law Speed Read – 28/08/18

Brooknight Guarding Limited v Mr Matie

In Brooknight Guarding Limited v Mr Matie, the Employment Appeal Tribunal (EAT) found that a security guard who was engaged under a zero hours contract, was an agency worker for the purposes of the Agency Worker Regulations 2010 (AWR).

Background

The AWR apply to agency workers who are assigned to do temporary work for hirers through agencies. They provide that after 12 weeks’ continuous service an agency worker is entitled to the same basic working conditions as those employed directly by the hirer.

Regulation 3 of the AWR stipulates, amongst other things, that in order to be classed as an agency worker, an individual must “work temporarily for and under the supervision and direction of a hirer”.

Facts

In December 2014, Mr Matie began working as a security officer for Brooknight Guarding Limited (BGL) and was engaged on a zero hours contract.

BGL supplied security guards to various clients throughout London, with the majority of their guards being provided to Mitie Security Limited (MSL).

Mr Matie was often supplied to work for MSL although he was on occasion assigned to some of BGL’s other clients. On 6 October 2016, Mr Matie was dismissed from his job.

Employment Tribunal (ET)

At the ET, Mr Matie argued that he was an agency worker and as he had the requisite 12 weeks’ continuous service, was entitled to the same basic working conditions as the security officers employed directly by MSL.

BGL refuted this by arguing that Mr Matie had worked permanently for MSL and could not therefore be deemed to be an agency worker.

The question that the ET had to determine was whether Mr Matie was working on a temporary or permanent basis.

The ET found that Mr Matie was carrying out work on a temporary basis. In coming to this decision, the ET considered the relevance of the zero hours nature of Mr Matie’s employment contract and his relatively short period of employment.

In addition, the ET also found that because BGL could, and did ask Mr Matie to work for other hirers and had complete control over the amount of hours he would work, he had carried out work on a temporary basis.

Employment Appeal Tribunal (EAT)

BGL appealed to the EAT and argued that the ET had erred in deciding that Mr Matie could not be a permanent worker if working on a zero hours contract.

BGL argued that it was possible to be engaged on a zero hours contract on an entirely indefinite basis and the ET should have focussed on the way the work was actually performed.

The EAT held that although the terms of a contract may not be determinative of agency worker status, they could still be relevant when assessing the working status of an individual.  Therefore, the ET was entitled to have regard to the flexibility that BGL had under the zero hours contract which allowed it to move Mr Matie from job to job.

The ET was right to consider these as relevant factors because they reflected the reality of the working relationship in practice.  Furthermore, the ET had also looked at the nature of the work Mr Matie had been supplied to do and found it was to provide “cover” for MSL when they were shortstaffed.

Consequently, the ET was correct in determining that Mr Matie carried out work on a temporary basis and was therefore an agency worker protected by the AWR.

Comment

This case shows that even if an individual is supplied to one hirer for the majority of their employment, they may still be seen as working on a temporary basis and will be deemed as an agency worker.

Although BGL tried to argue this decision could have huge effects on employee status across the country, the EAT stated that this would not be the case, as each case would depend on its own specific facts.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.