Agency workers and their rights

18 October 2018

Mr Matei was employed as a security guard by Brooknight Guarding. He usually worked at Mitie but had been sent elsewhere too.

His zero hours contract included a flexibility clause which said that he could be sent to any site. It also said his assigned site was not his permanent place of work. Mr Matei provided cover at Mitie when other guards did not attend work. In the mornings, he would wait to be told whether he was needed.

The employee brought claims as an agency worker, saying that he should be paid the same as permanent staff working at Mitie. To be an agency worker, the employee must be supplied by a temporary work agency to work temporarily for a hirer. The question here was whether Mr Matei was supplied temporarily. The employer said he was supplied to Mitie on a permanent basis.

The Employment Appeal Tribunal disagreed. They found that the employer had complete flexibility in its zero hours contract, including the ability to move employees from job to job. That power had been exercised previously when the employee had been sent to a different site. He worked as 'cover', for when other people did not turn up. He was supplied to work for Mitie temporarily, for the period of absence that he was covering. He could therefore bring claims as an agency worker.

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