Brooknight Guarding Ltd v. Matei

For the purposes of the Agency Workers Regulations 2010, an individual is supplied to work temporarily where the relevant work is not permanent. The inquiry concerns the purpose and nature of the work actually supplied, rather than the contractual label alone.

A zero-hours contract and a contractual power to move a worker between sites are relevant evidence, but neither is determinative. A tribunal may consider them alongside the practical reality of the engagement. Work supplied to provide cover as and when required, for the duration of an absence or additional requirement, may properly be found temporary. The assessment is fact-sensitive.

The Claimant was employed by a security company on a zero-hours contract from December 2014 to October 2016. He generally worked at the Citi Group site through Mitie Security Ltd, but could be assigned to other sites and had undertaken holiday cover at another site.

The East London Employment Tribunal held that the employer was a temporary work agency and that the Claimant was an agency worker entitled, after the qualifying period, to equal basic working conditions. It found that he worked as a cover security guard, supplied to Mitie as required.

The employer appealed. It contended that the Tribunal had treated the zero-hours contract and the length of service as determinative, instead of asking whether the Claimant's work for Mitie was permanent or temporary.

1. Appeal dismissed. The Employment Tribunal applied the correct test and reached a permissible finding that the Claimant was an agency worker under Regulation 3(1) of the Agency Workers Regulations 2010.
2. The question under Regulation 3(1)(a) was whether the Claimant had been supplied to work temporarily for the hirer. Applying Moran & Others v Ideal Cleaning Services Ltd & Another [2014] IRLR 172, temporary work means work that is not permanent. Permanent work is open-ended in duration, despite being terminable on notice. Temporary work is ordinarily terminable on some other condition, such as the end of a fixed period or completion of a particular project.
3. The focus is on the purpose and nature of the work for which the worker is supplied, assessed as a matter of fact. The underlying contract is not determinative. It may nevertheless be relevant evidence of what the parties contemplated and may be tested against how the arrangement operated in practice. By analogy with Murray v Foyle Meats Ltd [2000] 1 AC 51, the required analysis is factual rather than confined to contractual wording.
4. The Tribunal was entitled to consider the zero-hours arrangements, the flexibility clause, and the fact that the Claimant had been moved to another site. Its decisive finding, however, was that he was supplied as a cover security guard for Mitie when cover was required. That work was for the fixed duration of the absence or additional requirement being covered. The finding was supported by the Claimant's evidence and by Mitie's description of the service as supplied on a required-only basis for additional cover.
5. The Tribunal had not treated either the zero-hours contract or the 21-month duration of employment as determinative. Its conclusion was fact-specific and did not dictate the position of other agency workers whose work might instead be open-ended and permanent.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the finding that the Claimant was an agency worker.
• East London Employment Tribunal: held that the employer was a temporary work agency and that the Claimant was an agency worker entitled, after 12 weeks' continuous service, to the same basic working conditions as comparable Mitie security officers.