Can an employee on a zero-hours contract be an agency worker if their position is temporary?

In Brooknight Guarding Limited v Matei, the Employment Appeal Tribunal held that a security guard employed on a zero-hours contract was not a permanent employee but an agency worker under the Agency Worker Regulations 2010 (“the Regulations”). As a result, he was entitled to the same employment terms and conditions as a comparable employee under the Regulations.

  • A member of staff engaged on a zero-hours contract can be deemed to be an agency worker where their position is temporary, and therefore entitled to the same terms and conditions of employment as the end-user’s direct staff. A position may be deemed ‘temporary’ even where the individual has worked for the same end-user for an extended period (21 months in this case). The Regulations may therefore apply to more businesses than employers may previously have thought.

  • Whether or not a member of staff engaged in this way will be deemed to be an agency worker will be extremely fact sensitive. The contractual terms in place will not be solely determinative, and consideration will need to be given as to whether the nature and purpose of the work is genuinely of an indefinite or permanent nature, or whether it is actually temporary.

  • Businesses are well-advised to review their existing staff arrangements and to consider whether there are individuals contracted in this way who may be deem to be agency workers, and therefore entitled to additional employment law rights.

Mr Matei was employed by Brooknight, a security company, as a “cover” security guard on a zero-hours contract. Although he was assigned to work for different clients at various sites in and around London when required, he predominantly worked at signs controlled by Mitie, a facilities management company.

Mr Matei was dismissed after 21 months. He subsequently lodged a claim in the Employment Tribunal alleging that he was an agency worker under the Regulations, and therefore entitled to the same basic working and employment conditions as Mitie’s direct staff after 12 weeks’ service. Brooknight argued that Mr Matei was not entitled to this protection because it was not a temporary work agency supplying temporary staff to hirers. Brooknight claimed that Mr Matei was a permanent employee of Mitie, having been sub-contracted to work there indefinitely.

The Employment Tribunal rejected Brooknight’s arguments, finding that: (1) Brooknight was a temporary work agency; and (2) Mr Matei had been supplied to work temporarily for Mitie and worked under Mitie’s supervision and control. He was therefore an agency worker.

Brooknight appealed to the Employment Appeal Tribunal, alleging that even though Mr Matei was engaged on a zero-hours contract he was still a permanent employee. The Employment Appeal Tribunal disagreed and dismissed Brooknight’s appeal.

It held that the nature of Mr Matei’s work was key to determining his status as an agency worker: Mr Matei’s position as a “cover” security guard meant that he provided cover as and when required, and not on an indefinite or permanent basis. He was therefore an agency worker and entitled to the same terms and conditions as those working directly for Mitie as security guards.