Employees awarded compensation for Council's breach of information rules introduced by the Agency Workers Regulations
A Tribunal has ruled that a Council which failed to provide information about its use of agency workers to a trade union in accordance with requirements introduced by the Agency Workers Regulations 2010 (AWR) must pay compensation to its employees for its breach.
The AWR came into force on 1 October 2011. Most people are aware that the AWR gives certain equal treatment rights to temporary agency workers. However, what tends to be forgotten or even overlooked is that the AWR also introduced new obligations on employers to provide "suitable information" on the use of agency workers to employee representatives in collective redundancy, collective bargaining and TUPE transfer situations.
The "suitable information" that must be disclosed is:
- the total number of agency workers working temporarily for and under the supervision and direction of the employer;
- the parts of the employer's undertaking in which those agency workers are working; and
- the type of work those agency workers are carrying out.
The AWR amended existing legislation in order to introduce this requirement to provide information about agency workers. The relevant legislation in this case is section188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and Regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
Barnet Council had an established practice of supplying the trade union Unison with information on its agency workers in redundancy and TUPE transfer situations. Unison would then send that information to each of the Council's directorates to check whether it was accurate and to ask about the strategy for cutting back the use of agency staff with a view to saving the jobs of employees.
In around 2009, Unison started to experience problems with obtaining this information from Barnet Council. In October 2011 Barnet Council gave notice to Unison under section188 of TULRCA that it proposed to make a round of redundancies with effect from 31 March 2012. The Council was also involved in transferring housing and parking staff under two separate and distinct TUPE transfers.
Unison brought an Employment Tribunal claim against Barnet Council. It submitted that the Council had breached its obligations under TULRCA and TUPE by failing to provide the Union with relevant information on its agency workers in relation to the collective redundancy consultation and the two TUPE transfers in 2012.
The Tribunal considered what information was provided by Barnet Council in light of its obligations under the suitable information requirements of section188 of TULRCA and Regulation 13 of TUPE, as amended by the AWR.
It found that the number of agency workers employed by the Council had been provided to Unison, and so that requirement was satisfied. However, Barnet Council had only complied in part with the second requirement that the employer must communicate to the Union the parts of the employer's undertaking in which those agency workers were working.
Furthermore, the Council demonstrated "a complete failure to comply" with the third requirement that it must provide information as to the type of work those agency workers were carrying out.
The Tribunal said that these breaches taken together constituted a "relatively serious failure" and, following case law, used its discretion to start with the maximum protective award of 90 days' pay to penalise the Council for the breach and work down from there when calculating the amount of the award.
However, in deciding to make a protective award for the redundancy failures under TULRCA and compensation for the two TUPE transfers, the Tribunal accepted that there were differences in the severity of the three events.
The redundancy failure was found to be the most serious breach. The information regarding agency workers at Barnet Council was highly valuable to Unison in its efforts to save people's jobs during the consultation process. Although there was a fair degree of consultation, the significant piece of information regarding the type of work the agency workers were carrying out was absent.
The Tribunal therefore made a protective award of 60 days' pay for each of the 16 people made redundant by Barnet Council.
Turning to the TUPE transfers, the Tribunal awarded compensation of 40 days' pay for the 77 people affected by what was called the Housing Transfer and 50 days' pay for those affected by the Parking Transfer.
The failure to consult with Unison on the Housing Transfer was less serious because those transferring were only expected to move 1.5 miles away. However, the breach of the duty with regard to the Parking Transfer was more serious than the first because the affected people might have to transfer to towns some distance away.
In addition, Barnet Council had been given the opportunity to remedy the breach and had failed to do so.
The Tribunal's decision to make protective and compensatory awards on a sliding scale of seriousness is a useful guide as to how breaches of these AWR information requirements will be dealt with.
This is believed to be one of the first cases involving breaches of these new requirements. Indeed, the Tribunal noted that neither Unison nor Barnet Council was even aware that the provisions had been added to the relevant pieces of legislation.
However, in light of this judgment, trade unions and employers alike will now be alive to the importance of providing information on agency workers in collective redundancy and TUPE transfer situations, as well as the potential consequences of failing to do so.
Employers should also consider this final point: a key factor in the Tribunal's decision to make a protective award for the redundancy failures under TULRCA and compensation for the TUPE transfers was that the information on the type of work that agency workers were doing was relatively easy to produce.
The Council had produced such information in the past and produced it again shortly after the matters in question in this case.
When confronted by employee representatives with requests for information that complies with the relevant provisions, employers would therefore be well advised to provide that information, paying particular attention to the ease with which it is possible to do so.
Furthermore, employers should protect their businesses by ensuring that any pro forma documentation they use for collective redundancies, TUPE transfer and collective bargaining situations are amended to include the required information concerning agency workers.