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When is a Zero-Hours Worker not a Zero-Hours Worker?
This may seem like a trick question, but there has been a recent case that has shown that an individual with a zero-hours contract, who was supplied to an end-user was in fact deemed to be an agency worker with agency worker rights, instead of a zero-hours worker.

This distinction is important because agency workers are entitled to enhanced specific rights, some immediately on the commencement of an assignment, and some which accrue after they have worked for 12 weeks in the same job.

The case before the Employment Appeal Tribunal (EAT) recently involved a security guard, Mr Matei who had worked for 21 months for Brooknight Guarding Ltd, which offered various types of security services. Brooknight Guarding supplied Matei to work for third party security companies.

He was engaged on a zero-hours contract which included a clause allowing Brooknight Guarding to assign him to different sites as required. Matei mostly worked on a particular site where security services were provided by MS Ltd, but had occasionally been sent to other sites where the security services were provided by other clients of Brooknight Guarding.

Matei, claimed that he was engaged by Brooknight Guarding which supplied him to work temporarily for, and under the supervision and direction of third parties, was therefore an agency worker and as such should be entitled to the particular rights afforded to such workers. In particular, he claimed that he was entitled to the same basic working and employment conditions as comparable MS Ltd. staff.

Brooknight Guarding maintained that it was not a temporary work agency and that Matei worked permanently for MS Ltd. The employment tribunal disagreed and said that Brooknight Guarding was a company engaged in the economic activity of supplying individuals, including Matei, to work temporarily for, and under the supervision and direction of, a third party and therefore Matei was an agency worker.

The EAT dismissed Brooknight Guarding’s appeal and came to the conclusion that because Matei had worked at more than one site, it was reasonable for the tribunal to conclude that he had not been engaged permanently by MS Ltd and that rather, his contract was with Brooknight Guarding who supplied him to MS Ltd, and to other third parties when required.

The tribunal had therefore been entitled to take into account the complete flexibility given to Brooknight Guarding under the zero-hours contracts, which allowed it to move its security guards, including Matei, from job to job. If it had never exercised that power it would have been less relevant, but in Matei's case it had. Matei worked as “cover” meaning he could be asked to work at whichever site he was needed, and he was not assigned on an indefinite basis to carry out particular ongoing work.

It is important to note the distinction between zero-hours workers hired directly by an employer, who, because they are engaged directly, are not agency workers, and temporary zero-hours workers hired through a company which supplies temporary labour for and under the supervision and direction of an end-user, who are likely to be agency workers and have agency worker rights, as was the case here. If this is something that concerns you and you would like advice, please get in touch.
Posted on 13 Sep 2018


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