Agency Workers: A round up of recent developments
Recruitment company escapes liability to an agency worker by making repeated requests for comparator information
A recruitment company has recently escaped liability for an agency worker's claim for equal treatment under the Agency Workers Regulations 2010 (AWR) by taking reasonable steps to try and obtain information from the hirer about the working and employment conditions of a comparable direct recruit.
If an agency worker brings a claim under the AWR and the recruitment company that supplied the worker to the hirer can show that it acted reasonably to ensure equal treatment including by seeking relevant information from the hirer, it will be the hirer and not the recruitment company which will be liable if the agency worker's claim is successful.
This is what happened in the recent case of Miss G Stevens v (1) Northolt High School and (2) Teach 24 Ltd. The case serves as a useful reminder to recruitment companies that they must ask hirers for comparator information ahead of each agency worker's completion of the twelve-week qualifying period for equal treatment as regards basic working and employment conditions (such as pay and working time) under the AWR and to persist in asking for this information if the hirer fails to provide it.
Earlier this year, music teacher and agency worker Georgia Stevens won her claim for breach of her right under the AWR to the same basic working and employment conditions as a comparable direct recruit after the twelve-week qualifying period. Miss Stevens was awarded compensation of more than £10,000.
The Employment Tribunal had to decide how payment of this compensation should be apportioned between Northolt High School, the school that hired Miss Stevens, and Teach 24 Ltd, the recruitment company that supplied her. The Tribunal based its decision on the extent of responsibility of Northolt High School and Teach 24 Ltd for the infringement of the AWR. It considered that Teach 24 Ltd's repeated requests to the school for comparator information amounted to reasonable steps to obtain relevant information for the purposes of a defence to Miss Stevens' AWR claim. Consequently, Northolt High School was liable for the full amount of the compensation.
Teach 24 Ltd's failure to increase Miss Stevens' pay did not detract from the Tribunal's position on this point. The Tribunal was particularly influenced by the fact that Teach 24 Ltd had not received the information it needed from Northolt High School in order to be able to quantify the increase. Nor did Teach 24 Ltd's failure to inform Miss Stevens of her right to bring a claim under the AWR alter the Tribunal's view that the school, and not Teach 24 Ltd, must pay the full amount of the compensation.
Action to be taken
Recruitment companies that supply AWR agency workers should:
- ensure that they have systems in place to request comparator information from clients and that this is chased up on a regular basis if it is not provided;
- train staff on the AWR and the business's processes and procedures for ensuring compliance with the AWR;
- make sure that their contracts with clients include a clause requiring the client to provide comparator information, as well as other AWR related clauses that protect the recruitment company from liability and apportion risk appropriately; and
- contact us if you would like any further information or need assistance with any of the above.
Other agency worker news
- Labour MP and Shadow Secretary of State for Business, Innovation and Skills, Chuka Umunna, announced in a speech to the Trades Union Congress in September that, if a Labour government is elected to power at the next general election: "We will take action to ensure agency workers are properly protected and that there are no exemptions from equal treatment on pay including by ending the Swedish derogation from the Agency Regulations".
- From 1 October 2014 agency workers (as well as employees) have a right to take unpaid time off work to accompany a pregnant woman with whom they have a "qualifying relationship" to up to two antenatal appointments. To be eligible, agency workers must have completed the twelve-week qualifying period under the Agency Workers Regulations and have worked in the same role with the same end user client.
- Pregnant agency workers have the right from 1 October 2014 not to be subjected to any detriment by any act, or deliberate failure to act, by the temporary work agency or the client because they take time off to attend antenatal appointments.
- Agency workers (and employees) who are proposing to adopt will have a new right to time off work to attend adoption appointments from 5 April 2015.
Please contact us if you would like more information on any of the above rights.