![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201905.jpg)
Who is protected by the AWRs
[ch 2: pages 56-58]All temporary agency workers, both full- and part-time, are protected by the AWRs. An agency worker is defined as someone “supplied by a temporary work agency to work temporarily for and under the supervision and direction of the hirer” (regulation 3, AWRs). This includes most agency workers who are generally referred to as “temps”.
The AWRs also cover agency workers supplied via intermediaries such as umbrella companies and payroll businesses. The genuinely self-employed are excluded, as are individuals who supply their services via a personal service company.
Only “temporary” agency workers are protected. In a new ruling, Brooknight Guarding Limited v Matei [2018] UKEAT/0309/17/LA, the EAT has confirmed that the question whether an agency worker is “temporary” or “permanent” depends on the factual context in each case. What matters is whether, in reality, the work the agency worker is assigned to do is temporary or permanent. The contract terms are important, but they are not decisive:
Mr Matei was an employed agency worker on a zero hours contract (ZHC), employed to provide site security. His normal work was to provide "relief cover" for facilities management company Mitie, as and when required, typically when Mitie’s own security guards were off sick or failed to turn up at short notice. Matei’s ZHC gave his agency, Brooknight, absolute freedom to decide whether or not to offer him shifts.
Matei’s ZHC could be terminated by either side on giving notice, so Brooknight argued that Matei fell outside the protection of the AWRs. His employment was not “temporary”, they argued, since his ZHC continued indefinitely until terminated by notice.
The EAT disagreed. Matei did have rights under the AWRs because he worked “temporarily” for the duration of each separate assignment, as and when required. As a result, Matei was protected by the AWRs and could compare his pay, hours and holiday entitlement to that of Mitie's directly employed security guards.
Brooknight Guarding Limited v Matei [2018] UKEAT/0309/17/LA
This important new ruling represents a clear shift away from a much more limited interpretation, in this next highly controversial ruling:
Agency workers were permanent employees of facilities management company Ideal Cleaning Services on contracts terminable on notice. They were assigned to the same end user, a company called Celanese Acetate Limited, over long periods (between 6 and 25 years). They brought a claim under the AWRs asking to be paid the same as Celanese’s own employees. The claim failed because the EAT ruled that these workers had no AWR rights at all. Even though they were agency workers, they were not “temporary”, said the EAT, because their contracts lasted indefinitely until terminated by notice. On this narrow reading, only “fixed-term” agency workers were protected by the AWRs.
Moran & Others v Ideal Cleaning Services Limited [2014] IRLR 172
The Ideal ruling left thousands of agency workers without equal pay rights, after a planned appeal to the Court of Appeal was abandoned when the parties settled. As a result of the new ruling in Brooknight Guarding Limited v Matei [2018] UKEAT/0309/17/LA, tribunals can move away from the strict contractual approach taken in Ideal Cleaning. In future, whether or not an agency worker’s assignment is temporary or permanent must be decided by looking at all the facts, not just the contract terms, on a case-by-case basis. An agency worker like Mr Matei with a zero hours contract who works “as required” will qualify for equal treatment rights under the AWRs as a “temporary” worker. However, agency workers who are assigned on a long-term basis to just one client (such as those in the Ideal Cleaning case) may still be left without protection.