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Case law: Tribunal clarifies when agency workers are ‘temporary’ so protected by agency worker rules

Agency businesses should make clear whether their agency workers are provided to clients on a temporary basis or permanently/indefinitely, as the workers’ entitlement to employment rights and conditions can depend on this.

November 2018

This update was published in Legal Alert - November 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A security guard was employed on a zero hours contract for a period of 21 months. His employer, a temporary work agency, provided guards for clients ‘as and when needed’. Throughout his employment, the guard was mainly sent to one particular site for one particular client.

The issue was whether he was only placed with the client temporarily. If he was, then the Agency Workers’ Regulations applied to him, and he would be entitled to the same (or no less favourable) basic employment and working conditions as the client’s employees, provided they complete a qualifying period of 12 weeks in the particular job.

The approach taken by the Tribunals is that work is temporary if it is not permanent. Permanent work usually means work under a contract which is open-ended, ie, it has no fixed expiry date and only terminates if proper notice of termination is given.

The Employment Appeal Tribunal ruled that the guard’s work involved a series of separate assignments to the client, each for a fixed period. His work was therefore temporary rather than permanent or indefinite. He provided specific cover for the client as and when required (because the client’s own security guards were absent), and was therefore working temporarily each time, for the fixed duration of the absence being covered. Therefore, the Regulations applied to him.

The ruling makes clear that the fact he was working on a zero hours contract did not, of itself, mean he must be working temporarily. It was quite possible for such a contract to apply indefinitely, so it would then be permanent rather than temporary for these purposes.

Operative date

  • Now

Recommendation

  • Agency businesses should make clear whether their agency workers are provided to clients on a temporary basis or permanently/indefinitely, as their entitlement to employment rights and conditions can depend on this.

Case ref: Brooknight Guarding Ltd v Matei [2018] UKEAT 0309_17_2604

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