Agency worker claim hits the hirer not the recruitment agency
A recruitment agency escaped liability and the hirer took the hit for an agency worker's claim for equal treatment under the Agency Workers Regulations 2010 (AWR) in a recent case. This was because the recruitment agency had taken reasonable steps to try and obtain information from the hirer about the working and employment conditions of a comparable direct recruit of the hirer and the hirer had not responded.
If an agency worker brings a claim for equal pay under the AWR and the recruitment agency 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 agency 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 agencies and hirers of their obligations under the AWR. Recruitment agencies should ask hirers for comparator information well in advance 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. Hirers should provide comparator information to recruitment agencies and ensure that they do so promptly.
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 agency that supplied her. The Tribunal based its decision on the extent of responsibility of Northolt High School and Teach 24 for the infringement of the AWR. It considered that Teach 24'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's failure to increase Miss Stevens' pay in line with the requirements of the AWR did not detract from the Tribunal's position on this point. The Tribunal was particularly influenced by the fact that Teach 24 had not received the information it needed from Northolt High School in order to be able to quantify the increase. Nor did Teach 24'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, must pay the full amount of the compensation.
Action to be taken
If you engage temporary workers via recruitment agencies, make sure that you:
- work with the recruitment agencies to assess whether or not each worker they supply is protected by the AWR;
- remember that from day one of an assignment you must provide agency workers with access to certain facilities as well as information on permanent job vacancies;
- provide recruitment agencies with all requested information about comparable direct hires in good time and ensure you cover pay (which is much broader than simply basic salary), duration of working time, night work, rest periods and breaks, and annual leave;
- are aware that recruitment agencies' fees are likely to increase if the AWR requires them to pay the agency workers they supply more when they have completed the twelve week qualifying period;
- tackle the subject of the AWR and any likely fee increases before assignments commence; and
- enter into contracts with recruitment agencies which protect you from liability under the AWR and apportion risk between you and the recruitment agencies fairly and appropriately.
Recruitment agencies that supply AWR agency workers should:
- ensure that they have systems in place to request comparator information from their 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; and
- 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 agency from liability and apportion risk fairly and appropriately.