Perhaps the most surprising element of the decision in the recent case of Brooknight Guarding Limited v Matei, published in August 2018, was that the organisation argued it was not a temporary work agency for the purposes of the Agency Workers Regulations 2010 (AWR). On the stark facts of the case, it is clear that as a business engaged in the economic activity of supplying individuals to work temporarily for and under the supervision and direction of a hirer, it fell squarely within the definition of a temporary work agency.
Recruitment organisations will be familiar with the AWR. However, many others like Brooknight, which engage staff or contractors to provide cover to third parties as and when required, may still be overlooking the possibility that these regulations could also apply to their own business models. Such an oversight can have significant financial and organisational implications.
Agency workers benefit from extra rights when they work on a temporary job, including the use of the hiring organisation’s workplace facilities from the outset of their assignment, and entitlement to the same basic pay and working conditions as its permanent employees after 12 weeks in the same job, unless they are working under a pay between assignments contract.
Although the Employment Appeal Tribunal (EAT) was dismissive of the organisation’s objection that finding Matei was an agency worker could impact the business, there is some sympathy with this argument. Employers that have not considered whether the AWR apply to their business arrangements, only to find that they do, face the prospect of AWR claims, as well as the possibility of an increased wage bill for workers on long-term assignments, without the ability to recoup such liabilities from their clients. Hindsight may well be a wonderful thing, but in this situation, foresight is definitely better.
Nicola Butterworth is associate solicitor at Howes Percival