An employer, in this case a company supplying security guards, has found retrospectively that a zero hours worker was entitled to parity in terms and conditions with those staff employed directly by the end user.
In this case, a security company provided a guard to an end user, on an ad hoc, ‘when required’ basis. The guard was employed on a temporary zero hours contract, but worked in the main for the same end user. This is a very common scenario, not only for security companies, but also in some nursing companies and transport operations.
When the guard was eventually dismissed, he claimed that he was an Agency Worker, and therefore covered by the Agency Worker Regulations 2010. If the guard was correct, then he was entitled to the same terms and conditions as the security guards who were permanently employed directly by the end user. Naturally, these permanent terms were better.
The security company denied this was the case.
Unfortunately for the security company, the Appeal Tribunal disagreed. The judge felt that:
- The company was engaged in an economic activity, and
- Supplying people,
- To work temporarily for an end user, and
- The guard was under the supervision of the end user.
Therefore, it was an employment agency and the guard was an agency worker.
The result of this, is that the guard became entitled to parity in terms and conditions with the end user’s staff after 12 weeks.
As the guard had not received the better terms and conditions, there was compensation to be paid for all that he had missed out on.
It seems clear from this case that an employer cannot avoid these regulations by simply assigning the employee to another end user occasionally. Care should be taken to monitor an assignment and assess whether these regulations should be accounted for, before an assignment reaches 12 weeks in duration.
The case, which is well reported and in plain(ish) English can be read at the following link: