Agency worker – Agency Workers Regulations 2010 – meaning of ‘agency worker’
The Respondent security company had employed the Claimant as a security guard on a ‘zero-hours’ contract for some 21 months. His contract had included a flexibility clause enabling the Respondent to assign him to different sites as required, although the Claimant was generally (although not exclusively) supplied by the Respondent to Mitie Security Ltd, providing security services at the Citi Group site in London. The ET found the Claimant was being used as a ‘cover security guard’ and concluded that he was an agency worker for the purposes of the Agency Workers Regulations 2010. The Respondent appealed, contending that the ET had failed to apply the correct test and had wrongly treated the ‘zero-hours’ contract and the Claimant’s relatively short period of service as determinative.
Held: dismissing the appeal
In determining whether the Claimant was an agency worker for the purposes of the Agency Workers Regulations 2010, the question for the ET was whether he had been supplied by the Respondent to work temporarily for Mitie, i.e. that he was working on a temporary and not a permanent basis (Moran and Others v Ideal Cleaning Services Ltd and Another [2014] IRLR 172 EAT applied). In answering that question, the ET had to have regard to the work carried out by the Claimant as a matter of practice. Although the ET had considered the nature of the Claimant’s contract and relatively short period of employment to be relevant, it had not treated those factors as determinative; it had, rather, looked at the nature of the work for which the Claimant had been supplied and had found that it was to provide cover for Mitie as and when required. That was a finding supported not only by the Claimant’s evidence but also by Mitie’s description of the services provided. The ET had thus applied the correct legal test and reached a permissible conclusion that the Claimant was an agency worker.
Citations:
[2018] UKEAT 0309 – 17 – 2604
Links:
Statutes:
Agency Workers Regulations 2010
Jurisdiction:
England and Wales
Employment
Updated: 10 July 2022; Ref: scu.625434