Employment status and workforce audits

Do not overlook the application and reach of the Agency Worker Regulations 2010 (AWR).

Hot on the heels of high profile cases against Hermes and Pimlico Plumbers looking at worker status, the Employment Appeal Tribunal has delivered a ruling on agency worker status which serves as a timely reminder of the wide definitions of agency worker, and temporary work agency, under the AWR, and the breadth of the arrangements which may be caught by those definitions.

Under the AWR, agency workers are afforded ‘day 1’ rights, such as the right to access facilities like staff canteens and transport, and enhanced rights which are triggered after 12 weeks’ continuous service, including the right to receive the same pay and working conditions as comparable employees of the hirer/end user.  In the scenario where an individual’s employment is terminated prior to acquiring unfair dismissal rights, it can sometimes be the case that they try to assert agency worker status as a way of securing some financial compensation after the event.

In Matei v Brooknight Guarding Limited, a security guard, Mr Matei, was employed by Brooknight, a security company, under a zero-hours contract. His contract had a flexibility clause which allowed Brooknight to assign him to different client sites as required.  Brooknight had entered into a contract with Mitie to provide them with security guards on an ad hoc basis; they had other similar contracts in place with other third parties.  As it happened, the vast majority of Mr Matei’s time was spent working for Mitie Security, providing security services to one of their clients, Citi Group.

When Mr Matei was dismissed by Brooknight after 21 months’ service, he asserted that he was an agency worker and that Brooknight was a temporary work agency under the AWR.  As he had completed more than 12 weeks’ continuous service with Mitie he claimed that he was entitled to the same basic working conditions as security officers employed by Mitie themselves, under the AWR.  Brooknight resisted the claim on the basis that they were not a temporary work agency and the Claimant had, as a matter of practice, worked permanently and/or indefinitely for Mitie and so did not meet the relevant statutory definition.

In finding in his favour, it was critical to Mr Matei’s success that he had been providing ‘security guard cover’ when assigned to work for Mitie, a conclusion derived, in part, from the services being described as ad-hoc in the contract between Mitie and Brooknight.  The EAT were satisfied that his work for Mitie had been temporary in nature, notwithstanding that he had worked almost without interruption for Mitie across the whole 21 months, bringing him within the definition of an agency worker under the AWR.

Members of the Torque Law team have considerable experience in advising clients on the application of the AWR.  If you want advice on your obligations under the AWR or how to ensure your commercial arrangements with clients fall outside the scope of the AWR, please get in touch with Tiggy or Emma

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