HR professionals are by now old hands when it comes to dealing with the main provisions of the Agency Workers Regulations 2010 (or AWRs as they’re commonly called). Under the AWRs, agency workers are entitled to certain key information (for example, on permanent vacancies) and the equalisation of certain key benefits, facilities and remuneration.
So far, so familiar.
One less well known AWR requirement is to provide information on agency workers as part of a reorganisation. Where there are transfers of employees (engaging TUPE 2006) or mass redundancies (under TULR(C)A 1992), agency worker information must be supplied under these pieces of legislation. Information must be supplied, for each piece of legislation, on:
(i) The numbers of agency workers working under the supervision and direction of the employer
(ii) The parts of the organisation they work in
(iii) The type of work they carry out.
The London Borough of Barnet recently fell foul of these requirements in an important case that came before the Employment Appeals Tribunal.
In this instance*, an Employment Tribunal had previously made substantial awards against the Council for failing to provide appropriate AWR information under TUPE and TULRCA. The only failure clearly identified by the Employment Tribunal was the type of work agency workers carried out (iii above). In addition, the AWR had only just come into effect on 1 November 2011; neither the Council nor its recognised union (Unison) seemed aware of the AWR information requirements. Nevertheless, at the first hearing before the Employment Tribunal, it considered the failings “relatively serious”. It awarded between 40 and 60 days’ pay to affected employees; a sobering thought for employers.
The Council appealed, and successfully overturned this award. Past case law had previously suggested that awards for non-compliance are penalties and should start with the maximum where no consultation had been done. In the past, this has resulted in some very large awards.
Its now clear that this “start from the maximum award, then work down” approach doesn’t apply to TUPE and TULRCA where considerable consultation has been carried out. This should help employers in the future where there has been a minor or technical breach.
It goes without saying, however, that the best remedy is prevention; to remember the need to supply AWR information and do so accurately.
For more information, email firstname.lastname@example.org.
*London Borough of Barnet-v-Unison and Another