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Zero hours contract agency workers

Can a worker be on a zero hours contract and also be considered to be an agency worker? Does it depend whether the position is considered temporary rather than permanent? Should workers like this to be considered entitled to the same basic working conditions as employees after 12 weeks service?

A recent case in the Employment Appeals Tribunal, Matei v Brooknight Guarding Limited, looked at these issues. First, let's consider some of the basic ground rules surrounding zero hours contracts and agency workers.

Zero hours contract

Zero hours contract is a non-legal term used to describe many different types of casual agreements between an employer and an individual. Generally speaking, a zero hours contract is one in which the employer does not guarantee the individual any hours of work and the employee is not obliged to accept any work offered.

  • Most zero hours contracts will give staff 'worker' employment status.
  • Zero hours workers have the same employment rights as regular workers, although they may have breaks in their contracts, which affect rights that accrue over time.
  • Zero hours workers are entitled to annual leave, the national minimum wage and national living wage and pay for work-related travel in the same way as regular workers.
  • Protection is given for those on zero hours contracts from an exclusivity clause.  

Agency workers

Agency workers are defined as someone with a contract with an agency, who works temporarily for a hirer. Agencies can include recruitment agencies and those who look for work through entertainment and modelling agencies.

A worker is not defined as an an agency worker if they:

  • find work via an agency but work for themselves - these people would be classed as self-employed
  • use an agency to find permanent or fixed-term employment - they are likely to be an employee of the company (although this must be defined by the company and a contract)
  • take a ‘pay between assignments’ contract - this makes them an employee of the agency.

For agency workers, the agency must provide written terms of employment before looking for work for the agency worker. These should include whether you’re employed under a contract for services or a contract of employment, the notice period and pay rate and the holiday entitlement.

Equal treatment from 12 weeks

From the day an agency worker starts work, they have worker’s employment rights. They are also entitled to have the same rights as permanent colleagues to use any shared facilities and services provided by the employer (for example a canteen, drinks machines, workplace creche, etc).

After 12 weeks in the job, the agency worker qualifies for the same rights as someone employed directly. This is known as ‘equal treatment’. Their rights include:

  • ‘equal pay’ - the same pay as a permanent colleague doing the same job
  • automatic pension enrolment
  • paid annual leave

Employment Appeals Tribunal case

The Matei v Brooknight Guarding Limited case, mentioned above in the Employment Appeals Tribunal, dealt with these issues.

The Claimant, Mr Matei, was employed as a security guard on a 'zero hours contract' by Brooknight Guarding, a security company which employs security guards on what are described as 'zero-hour contracts' to guard premises at a variety of sites in London. 

Mr Matei 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.

Mr Matei 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, Brooknight Guarding, appealed.

The Employment Appeals Tribunal upheld the Tribunal's decision on 'employee status'. The employer argued that the fact that he worked on a zero hours contract did not necessarily mean he could not be a permanent employee. The Employment Appeals Tribunal rejected this, stating that 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.

Temporary or fixed duration?

Paul Burton, Head of Frettens' Employment Team, comments “The issue they had to decide was whether the Claimant was working temporarily. The Employment Tribunal had had regard to the zero-hours nature of the Claimant's contract and the relatively short duration of his employment with the Respondent. However, they also found that the Claimant was being supplied to work to provide specific cover for Mitie when required, and would therefore be temporarily working for the fixed duration of the absence.”

Paul concludes "It is a slightly complicated case involving a number of issues. If you, as an employer or an agency supplying workers, are concerned as to what status a worker qualifies for, please do get in touch so that we can help you ensure you take the correct steps and fulfil any obligations required."

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.