Could an employee on a zero hours contract be an agency worker if his position was temporary rather than permanent?
Yes, held the EAT in Matei v Brooknight Guarding Limited.
The Claimant was employed as a security guard on a 'zero hours contract' by the Respondent. He was assigned to different sites for different clients as and when required but he worked mostly for one particular client, Mitie. He was dismissed after 21 months.
The Claimant claimed that he was an agency worker, and therefore entitled to the same basic working conditions as the Mitie staff after 12 weeks' service. The tribunal agreed, on the basis that he had been supplied to work temporarily for the hirer (Mitie) and worked under their supervision and direction. His employer appealed.
The EAT upheld the tribunal's decision on 'employee status'. The employer argued that the fact he worked on a zero hours contract did not necessarily mean he could not be a permanent employee. The EAT rejected this. The position was temporary as it was not permanent or indefinite. The tribunal had adopted the correct approach to this, and even the employer's evidence suggested that the arrangement had been temporary.
Thanks to James English of Hempsons solicitors for preparing this case summary.
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