Acas issues Guidance on settlement agreements for UK employers

By David Whincup on Posted in Termination

You know that there is something seriously amiss with employment relations in the UK when Acas’ new Guidance on settlement agreements has to run to 83 pages.   This is of course on top of its Code of Practice which contains another 11.  So that is close to 100 pages dedicated essentially to how to agree something with an employee and then write it down.

The complicating factor here is of course the coming into force this week of Section 111A Employment Rights Act 1996, the “protected conversations” concept, i.e. the ability to offer an employee money to go away without his being able to use that approach against you if he refuses it.  We have posted on this idea a number of times before, none of them very positively.  Sad to report that there is nothing in the new Acas Guidance which addresses its basic shortcomings – that the conditions attached to the protection of such an approach are too limiting and unclear and that the risks of not benefiting from that protection are too high.

The Guidance sets out good practice only and has no formal status in Employment Tribunal proceedings, whereas the Code can be taken into account in that forum.  So what do those 83 pages add? Some selected highlights:

  • Employers should be careful not to rely on settlement agreements as a substitute for good performance management (but it is entirely lawful to do so);
  • The offer can be oral or written but in either case should be accompanied by an explanation of why it is being made, this in sufficient detail to allow the employee to make an informed decision about his options.  In reality you would almost always be better off putting offers in writing;
  • The Guidance contains templates for offer letters and a settlement agreement, but use of these is not compulsory;
  • A minimum consideration period of 10 calendar days must be given to the employee.  Anything less risks blowing the protection which the offer would otherwise have from disclosure in the Tribunal;
  • It is good practice (but not a legal obligation) to allow the employee to be accompanied at any meeting held to make or discuss a severance offer;
  • “If the settlement discussions are conducting in a sensitive manner, including listening to concerns and providing informative answers to questions, there is a greater chance of reaching a mutually acceptable outcome“.  Equally it might be said that if you are prepared to discuss issues with your employees in that way, you will probably not need these severance offers in the first place;
  • An explanation of the differences between the pre-existing without prejudice concept and the new “admissibility provisions” under s.111A – in broad terms, without prejudice protection requires an offer to be a genuine attempt to resolve an existing dispute, whereas the s.111A offer can come “out of the blue”.  As a way of subsequently generating a dispute this has few equals, but the s.111A protection then makes this much harder for the employee to pursue;
  • The protected conversations regime will not prevent offers made being disclosed in claims of automatic unfair dismissal, discrimination or whistleblowing, i.e. all the circumstances where the employer is perhaps most likely to want a quick and discreet resolution;
  • Similarly, where the employer is guilty of “improper behaviour” around the offer, that protection may be lost.  Extensive lobbying of Government at the drafting stage sadly failed to procure any statutory definition of this.  The Guidance refers to “putting undue pressure on a party” as an example of improper behaviour.  Although its few examples are miles away from giving employers a useful picture of what this might cover, it does assert also that “the test of improper behaviour is not intended to interfere with existing and acceptable negotiating practices“.

That does not seem much content for your 83 pages.  However, the template settlement agreement accounts for 17 of them, and the drafting notes for it another 9, and they contain nothing which need trouble any employer or employee with past experience of compromise agreements.

Napoleon walks HR tightrope in UK Call Centre

By Squire Patton Boggs on Posted in Discrimination, Recruitment

I have recently been watching (and secretly enjoying) BBC Three’s The Call Centre. The “documentary” follows the day to day events at a Swansea call centre under the leadership of CEO and self-titled Napoleon, Nev. It took me a while to realise that this was not some terribly clever spoof like The Office, but was in fact the real thing.  One wonders how they sold the idea to Nev, and I suspect that looking back, he probably does too.

Nev’s management style can only be described as unique and I am sure there were numerous employment lawyers and HR managers watching from behind the sofa some of the goings-on. I have set out a few of my personal highlights and the potential issues below.

  1. After conducting interviews where one of the questions was simply “Do you want a job?”, Nev walked potential recruits through the Centre asking current employees whether they deserve a job. He even shouts “Good-looking Welsh girl coming through” when parading one of them. These acts may create an impression (put delicately) that successful candidates are not selected based on wholly objective criteria and that protected characteristics may have been taken into account. For example, the Call Centre has a high percentage of employees under 25 and an impression may be given to older unsuccessful candidates that their age was a factor.  It may equally be, on the other hand, that anyone materially older would have the degree of self-respect necessary to know that he/she could not put up with Nev for any extended length of time.
  2. New recruits were made to sing The Killers’ Mr Brightside and Nev admitted that he has previously sacked people for not singing. New employees obviously would not have sufficient service to bring an unfair dismissal claim but if they did, I wonder whether “failure to sing” could be squeezed into one of the potentially fair reasons for dismissal. It could perhaps be argued that Call Centre staff need to be out-going and confident and any dismissal was therefore an SOSR one but I suspect that a Tribunal would prefer a suitability test with at least some passing relevance to the job in hand.
  3. When a member of staff at a training session appeared to be falling asleep, Nev threw a pen at him (though he did warn him to duck and said he aimed above his head). Whilst making very funny television, it could be suggested that such conduct is bordering on bullying.  Do not try this at home, boys and girls.
  4. Nev paraded an employee through the office proclaiming her to be a “desperate female” and asking for “single blokes” in the workforce to give her a hug.  No wonder she looked desperate.  At first glance one might suggest that she has a cast-iron claim for harassment though a claim for direct discrimination may fail as we see him do a similar thing with one of the male employees later in the series.  An asset at any dinner party, our Nev.
  5. When one employee missed her sales targets, Nev demoted her to tea lady. No apparent attempt was made to performance manage her first. Perhaps training would have been a better route and there would obviously be a risk that the employee could bring a claim for constructive unfair dismissal.  We do not see her reaction to this. however, and it remains possible that her new role provides her with somewhat greater satisfaction than did being welded to the phone on tele-sales.

Interestingly, the company in question ranked highly in the Sunday Times Best Companies to Work For 2013 and many of the employees did seem happy. Maybe he is seen as a little harmless respite from an otherwise fairly tedious job.  Ultimately, the current employees seem to have accepted Nev’s conduct and even embrace it. Adapting Nev’s catchphrase “happy people sell”, perhaps happy people don’t bring claims!   But here is Nev’s risk – the fact that employees have not complained about discriminatory conduct on his part does not mean that they are not offended by it.  You do not work at a Call Centre if you are over-burdened by other career choices, so they may be reluctant to complain for fear of having to leave.  But all it will take for this Napoleon to meet his particular Waterloo is for one of them do so, especially when all the evidence is on film.

For those of you that have not seen it, I am afraid the series it is no longer available on BBC iplayer although this clip on the BBC website will give you a flavour.

Auto-enrolment – a last-minute guide for UK employers: Part 1

By Simon James on Posted in Pensions

In not quite breaking news: on October 2012 a long-heralded employer duty was introduced into UK law, under which employers must automatically enroll workers into suitable pension plans and pay contributions into those plans. Though at the time placing one’s head firmly in the sand might have been very tempting, the new law is now upon us and neither ignorance nor inertia will get you past the Pensions Regulator in one piece.

This is the first in a short series of blogs discussing the legal requirements of the new obligation. There is a lot of complexity for something that commentators fear will ultimately only provide a very small pension!

So why is this important now?

The duty to enroll workers initially only applied to the largest employers and is being gradually phased in over staggered ‘staging dates’, ending with the smallest (and new) employers in February 2018. Employers with between 2,000 and 3,000 employees will be staging on 1 August 2013. With typical lead-in times of 6 to 9 months and industry warnings of capacity crunches among some pension providers, if you haven’t reached your staging date yet, it’s important to know when it is and plan appropriately.

Working out whether a staging date applies is not always straightforward, – the legislation is about as transparent as the plot to Inception.  Mercifully the Pensions Regulator has provided a helpful staging date calculator. All employers need to do is input their PAYE reference and it will automatically generate the staging date that applies.

Once you have used the Pensions Regulator’s calculator (and bookmarked the Pension Regulator’s webpage for holiday reading – we’ve all done it.  Haven’t we?) the next step is to work out who needs to be automatically enrolled. The auto-enrolment legislation applies to ‘workers’, broadly defined as any individual who:

  • has entered into or works under a contract of employment; or
  • has a contract to perform work or services personally (and is not self-employed).

When the workers have been identified (trickier than it sounds – we’ll be coming back to this another time) the employer will then need to make sure that those workers are enrolled in a ‘qualifying scheme’. This can be a ‘defined benefits’ scheme or a ‘defined contribution’ scheme, an existing scheme or a new scheme and there are various options available to employers, including the pension scheme set up by the UK Government (the National Employment Savings Trust (NEST)) but whatever the option chosen, a minimum level of contributions must be made into the scheme.

And finally…a word of caution. Workers can opt out of an auto-enrolment pension scheme if they wish to do so, but employers must not offer them incentives or inducements to opt out.  Significant penalties, statutory notices and escalating fines may apply if they do so, even wholly inadvertently – so take care!

UK early conciliation scheme – taking on water already?

By David Whincup on Posted in Conciliation, Mediation, Settlement

Part of the Government’s proposals “to reduce the burdens on business” (i.e. the cost to the Government of running the Employment Tribunal system) is Early Conciliation (EC).  This requires prospective claimants to contact Acas and be talked through the conciliation process before they can bring a Tribunal claim.  When it is launched next year, there will be no obligation on the part of the prospective claimant or respondent then to agree to conciliation, but the hope is that enough will do so to reduce materially the number of Employment Tribunal claims brought.  

Will it work?  The Government’s Response to its consultation exercise on EC has now been published.  Has the concept been given more careful consideration than is suggested by the numerous blatant proof-reading failures in the covering letter from Jo Swinson, Minister for Employment Relations and Consumer Affairs?  

We have our concerns.  The Response includes a template form to be completed by prospective claimants to request EC.  Who are you, who was your employer, what did you do, when did the thing you intend to make a claim about take place?  But not what do you intend to make a claim about?  Since (paragraph 14 of the Response) the Government “accepts that the Acas conciliator will not be able to enter into, or facilitate agreement on, settlement discussions with a prospective respondent without being able to explain … what the prospective claimant considers the dispute to be about“, why would you not ask this at the very outset?  

The Government believes that this is information which Acas will be able to obtain in its conversations with the claimant.  This takes time and therefore money.  Moreover, in the very next paragraph it recognises that “a consequence of this approach may be that a prospective claimant may include on any subsequent ET1 a head of claim that they had not previously mentioned to Acas and which was not therefore the subject of EC discussions with the prospective respondent“.  This is all the more disconcerting because the Response fully and properly accepts at paragraph 33 the importance to the conciliation process of “better-informed individuals with more realistic expectations“.  

The original pre-consultation thinking by the Government was that “it may be difficult for some prospective claimants to fully understand the nature and breadth of their dispute, and that to require them to provide such information on their request form might ultimately prevent them from being able to bring some elements of their dispute to the Employment Tribunal“.   Clearly this is nonsense.  All this means is that the point where those employees’ inability to particularise their claim becomes obvious falls only much further down the process and only after much more time and money has been spent by both the respondent and the Tribunal system itself.  How much preferable it would be that such things were flushed out early on.  The claimant will have to provide those details at some stage during the proceedings, after all.  

If this position remains, employers will therefore need to be more than ever careful that any settlement agreement reached through the conciliation process is not limited to the claims and allegations relayed to them via Acas, but to all claims whether formally intimated or not.  If claimants are not obliged to provide full information about their claims, then the corollary must be that those claims will sometimes be disposed of by settlement without their getting any proper airing.

Footballer caught offside in religious accommodation debate

By David Whincup on Posted in Discrimination

Hats off for a striking own-goal scored by Premiership Footballer Papiss Cisse in his dispute with Newcastle United FC (see our post of 15 July – Football Strip Adds Interest to Debate).  To re-cap, Cisse has refused to wear Newcastle’s usual strip because the activities of its shirt sponsor, Wonga, offend Sharia and Islamic principles relating to the charging of interest on loans.

No solution to that issue has yet been reported, but you can expect what little sympathy Newcastle fans and bosses might have had for his position to have been significantly eroded by the recent appearance of photographs of Cisse in the City’s Aspers Casino.  Aspers confirms Cisse as an “occasional visitor” (i.e. more than once) who is – perhaps by way of distinction from other visiting footballers – “very well-behaved and very welcome”.  The casino would not confirm whether Cisse did actually gamble – another infringement of Sharia law – and his agent denies it, but the photo of him sitting at a dealing table, hat pulled down (hats only permitted in the Poker Room, reveals Aspers’ dress code, oddly), may then take some explaining.

Helpful this may be to Newcastle’s PR position in its dispute with Cisse about the Wonga branding, but does it actually alter the law behind it?  It would be a brave employer which took from an employee’s marginal respect for one tenet of his faith that he must therefore be equally willing to ride roughshod through others.  However, the Cisse question is a little different.  His issue with Wonga is not that it requires him to breach Sharia law in benefitting from the charging of interest, but that his wearing the strip promotes an organisation which does, and so gives the wrong impression to other Muslims.  It is a much harder argument to contend that you are willing to be associated with certain non-Islamic behaviours and not others.  At least with the strip issue, Cisse could argue that he is contractually bound to wear it and that his contract expressly prevents his wearing it being used to indicate his support for the sponsor.  Periodically wandering into Aspers, on the other hand, must be seen as wholly voluntary and so quite without the same possible mitigation.  Whether he did actually gamble is then about as relevant as whether he does actually lend money at usurious interest rates, i.e. not at all.

Cisse’s local councillor and a supporter in the Wonga debate says “Islam is not about picking and choosing”.  Maybe not, but his appearances in one of the region’s premier gambling joints have certainly lengthened the odds on his chances of success were this particular off-field drama ever to be played out in the Newcastle Employment Tribunal.

5 lessons employers can learn from the Paula Deen Scandal

By Squire Patton Boggs on Posted in Discrimination, Harassment, Litigation, Recent Cases, Retaliation, Whistleblowing

1.  Mind your tongue.  Racial slurs and comments are never appropriate in the workplace and never when used by the boss.  Failing to take action when you learn of employees at any level using racial or ethnic slurs undermines efforts to create a harassment free environment and opens the door to serious liability.

2.  Pay people fairly.  If you have hourly employees with vastly different pay rates for the same job, you likely have a problem, especially if it appears that those in protected categories are paid less than others.   Regular audits of employee pay and bonuses are a good practice.

3.  Always be on your best behavior.  Anyone can be offended by bad behavior, even if you and the offended person are the same color or gender.  The whistleblower and plaintiff in the Deen lawsuit is a Caucasian woman who was a manager at one of Deen’s restaurants.  The manager alleges she could no longer tolerate Deen’s racist comments and those of Deen’s brother, among other things.  Although Deen’s legal team has filed a motion to dismiss the lawsuit on the ground that the manager could not have suffered any harm from Deen’s alleged use of the N-word because the manager is not African-American, the outcome of that motion remains to be seen.  If the manager lost her job in retaliation for objecting to the behavior or the hostile environment caused her emotional distress, other legal claims not reliant upon the plaintiff’s race may be harder to avoid.

4.  Litigation is public. Accusations make headlines.  Denials look defensive (or worse).  By the time the case is actually resolved, the media has moved on and the damage done.  While your business may not be a household name like Paula Deen’s, once a lawsuit is filed ANYONE can read it and distribute it because it is a public record.  More and more courthouses are putting their records on-line so your clients, prospective employees and competitors can easily access cases filed against you from the comfort of their own offices, homes and iPhones.    While arbitration agreements requiring employees to pursue most employment-related claims in private arbitration proceedings instead of court can minimize such publicity, employees often ignore them, file in court, and make the employer move to compel arbitration, all the while basking in the publicity.  Because the legal technicalities of these agreements vary from state to state and arbitration has some unique risks, consult counsel before implementing an arbitration agreement.

5.   Lawsuits drain your resources.  Paula Deen has reportedly lost more than $12 million as a result of this lawsuit and that is not including her legal fees and any amounts she may ultimately have to pay if she loses the case. Through social media, cases can take on a viral life of their own both inside and outside your company.  The cost of litigation (even if you have EPLI coverage) extends beyond legal fees and court costs.  It is distracting for those involved and for those who gossip about it.  Your team will have to spend time gathering documents and information, meeting with lawyers and perhaps even testifying at depositions and/or in court.  Train all employees regarding your policies against workplace discrimination and harassment with an emphasis on your internal reporting procedures and be sure to practice what you preach.   If you suspect a problem, act early.

Cricket Australia’s legal position turns to Ashes

By Squire Patton Boggs on Posted in Discrimination

The recent travails of the Australian cricket team have been the cause for some rejoicing amongst England fans who are old enough to remember the dark days of, well, most of the last 30 years.

One individual probably quite seriously conflicted over the whole thing is Mickey Arthur, the recently deposed Australian coach.  To recap, only 16 days before the first Ashes Test, Cricket Australia took the somewhat surprising decision to dismiss Mr Arthur from his position.  He was replaced by Darren Lehmann who had the qualifications of a) not being Mr Arthur and b) actually being Australian (Mr Arthur is South African).  Indeed, whilst Mr Arthur had been lauded only a few months earlier for taking a firm stance on responsibility and suspending four players (see blog post Australian Cricketers Test Disciplinary Boundaries), Mr Lehmann seamlessly became the next great hope to take Australia back to the summit or the world game.

Mr Arthur took his dismissal stoically, at least publically, stating “I’ve got to set the standards. If things go wrong on your watch, you certainly pay the price. It’s a tough pill to swallow but that’s ultimately what I signed up for.”  However, it transpires that off the field Mr Arthur is bringing a number of claims to the Australian Fair Work Commission, allegedly seeking AUS$ 4m in damages or reinstatement.  I should say at this point that the only confirmed information is that Mr Arthur has brought a case.  Under the relevant legislation, the exact details of the case are confidential, or should have been, until someone leaked them to Channel 7 in Australia.  It is alleged that the claims include racial discrimination and that the decision to dismiss (allegedly as a result of continued poor conduct by the Australian players on his watch, culminating in one punching an England player in a nightclub, apparently for wearing an Australian wig as a beard, as you do) was taken without allowing him a fair hearing over the issue.

The interesting angle here is the racial discrimination claim, which is allegedly founded on the premise that Mr Arthur was discriminated against because he was South African and did not understand the “Australian way”.  Leaving aside the fact that there seems to be no clear agreement on what the “Australian way” actually is (one magazine article ironically describing it as multi-cultural), this claim, in isolation, is perhaps not quite so far-fetched as it may seem.

For example, an employee in a foreign-owned bank where senior management is dominated by a nationality that he does not share may not understand the finer points of the customs or etiquette particular to that country and may inadvertently breach these, for example by suggesting an improvement to a plan put forward by a superior, which in some societies would be taken as a serious criticism.  If this breach then leads to the employee being ostracised or overlooked for promotion, then he may in theory have a claim for indirect discrimination.  In this case, if Mr Arthur’s attempts to impose discipline were viewed by some within Cricket Australia as overly pernickety and not in keeping with a more traditional, Australian view of things, and if his dismissal were to be connected to this, then he would potentially (under UK employment law, at least) be able to claim discrimination.  Indeed, Mr Arthur’s case may be more simple, in that if Cricket Australia just decided that it needed someone more ‘Australian’ in charge for the Ashes series, then he would clearly have a discrimination claim, unless Cricket Australia could show that it was a genuine requirement of the role for someone to be Australian (though you might rather expect them to have thought about that at the time of his appointment if it were a real issue).

What this case does show, however, is that, even if you know that the dismissal is going to be unfair, it can make commercial sense to dismiss someone for the greater good of the company/team.   If Australia win the Ashes both home and away (which is highly unlikely, if we’re honest), then I suspect that the current furore over this case will recede into the background and this will look like a ‘good’ decision.  If, however, Australia continue to perform poorly, expect this case to rumble on, particularly as it will offer Mr Arthur the obvious argument that the fault lay not with him but with the players, and that his dismissal was therefore unfair.

High Court tells ex-employees to hand back control of LinkedIn Groups to employer

By Squire Patton Boggs on Posted in Competition, Confidentiality, Employment Contracts, Social Media

In recent webinars and workshops we have discussed the issues presented by the use of social networking sites, particularly LinkedIn, by employees who leave to join a competitor or set up on their own. Last week, written judgment was handed down in relation to an injunction application in the case of Whitmar Publications Limited v Gamage, Wright & Crawley which considered the use of LinkedIn Groups in the context of that intended competition.  By the standards of these things, the judgment is a fun read – Mr Gamage and his colleagues have kindly provided an absolutely exemplary demonstration of how not to make covert preparations to compete with your current employer.

Gamage and his two compadres set up a rival publishing company, Earth Island, before leaving Whitmar.  Merely forming the company would be one thing but Whitmar argued that the three employees had also been taking active steps to compete against Whitmar prior to the termination of their employment.  They had taken business cards which belonged to Whitmar, as well as databases of its customers. Whitmar’s Linked-In groups appeared to have been used as the source of a round-robin email inviting a large number of individuals to attend an Earth Island event at a rather odd choice of venue for a covert launch, a bar in Leicester Square.

The Judge commented that: “Ms. Wright was responsible for dealing with the Linked-In groups as part of her employment duties at Whitmar. Those groups operated for Whitmar’s benefit and promoted its business, and Ms. Wright used Whitmar’s computers to carry out her work on the Linked-In groups”.  He was clearly persuaded that the evidence pointed towards the LinkedIn Group being something in which the employer had a proprietary interest even though LinkedIn’s own terms say specifically that any information held in a LinkedIn account belongs to the account-holder.

The email addresses and business cards had provided the three Defendants with a competitive advantage and the Judge granted “springboard” relief until full trial. Even though none of the three Defendants had any contractual post-termination restrictions on dealing with Whitmar’s clients, the effect of the springboard injunction was that they were restrained from dealing with any of the contacts whose names appeared on the business cards.

From a social media perspective, the interesting point in relation to the Order Whitmar obtained was that it included an active obligation on them to facilitate “exclusive access, management and control” of LinkedIn Groups to Whitmar.  The Judge also ordered the defendants not to access or do anything which inhibited or prevented Whitmar from accessing the LinkedIn Groups.

Whilst employers may be encouraged by this robust approach by the Court, it should be borne in mind that there was very strong evidence here both of the individuals’ misconduct and, tellingly, of their efforts to conceal it.   The Judge noted that “one of the badges of competition in cases such as this is the secrecy with which those who are competing go about their business.”  Mr Gamage, for example, agreed to return the business cards to Whitmar, but before doing so (Whitmar alleged), he surreptitiously used an App called “Card Munch” to convert photographs of business cards directly into LinkedIn contacts.  Top marks for initiative, but sadly let down at the last fence when he also emailed a contact about identifying a name for a new title he planned to publish asking:   “So how do we do that without blowing our cover?”   Oops!

UK Recruitment Legislation Consultation Response: limited company contractors’ opt-out preserved

By Squire Patton Boggs on Posted in Recruitment

In the first quarter of 2013, 286 members of the recruitment sector provided their comments on the Government’s proposals to change the legislation currently regulating that sector, commonly known as the “Conduct Regs”. The Government has now released a document containing a summary of those comments and has confirmed its intentions going forward.

By way of a summary of some of the key points in this response, the Government will replace the Conduct Regs with new legislation which:

  • allows limited company contractors to opt out;
  • continues to prohibit employment businesses from withholding payment from agency workers;
  • continues to restrict employment businesses from enforcing unreasonable temp to perm fees;
  • requires that it be made clear to a worker which entity in the chain is responsible for paying him;
  • continues to apply restrictions to the fees that can be charged to hirers with respect to permanent and temporary placements;
  • continues to prohibit employment agencies and businesses from penalising work-seekers for terminating or giving notice to terminate a placement;
  • requires employment agencies and employment businesses to keep sufficient records; and
  • removes job boards from the definition of “employment agency” and will make clear which entities do fall within that definition.

The Government has indicated that the team currently responsible for investigating breaches of the National Minimum Wage legislation will extend its remit to complaints made by agency workers. A small Government team will enforce the remainder of the new Regulations. The Government has also stated that individuals will be able to enforce their rights “informally and through the courts”. However, it has not yet been made clear whether this means the Employment Tribunal (the recourse for any agency worker claims under the Agency Workers Regulations 2010) or the civil courts such as the small claims courts, etc. Furthermore, clarity has not been provided as to which entities fall within the definition of “employment business” – another point for consideration when the draft Regulations are released.

There will be another short consultation on the draft Regulations. The Government has not yet indicated when this will be.

The full Government response, should you want to read it, is 31 pages.  It is reasonably heavy going, it has to be said!

The little-known part of the Agency Workers Regulations 2010 that helps put agency workers out of work

By Squire Patton Boggs on Posted in Agency Workers

Not all fun and frolics for agency workers, as it turns out.  Amendments to the Transfer of Undertakings (Protection of Employment) 2006 and the collective redundancy provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 brought about by the Agency Workers Regulations (“AWR”) mean that an employer is now obliged as part of its consultation obligations to tell affected employees and their representatives about the number of agency workers it has engaged, what work they are performing and the parts of its business in which they work.  

Why, you may ask? The main purpose is so that an employee faced with dismissal for redundancy can, with this agency worker data to hand, say to his employer as part of his representations during the consultation process: “You should look after your permanent staff first.  I suggest you get rid of that agency worker and employ me to do his role instead”.   

The AWR is a paradox – on one hand giving agency workers rights of equal treatment with permanent employees, but on the other giving permanent employees the means and opportunity to persuade employers to terminate agency workers’ assignments so that the agency worker is out on the street rather than the “pure” employee. It’s a little odd, perhaps, that the media has only focused on the former.  However, I suppose that one can hardly expect the Government, even granted its aim to grant more flexibility to employers (the unspeakable in pursuit of the unachievable, to borrow from Oscar Wilde) to jump up and down about its leaving a key sector of the UK workforce particularly exposed.    

If that were your transfer or collective redundancy exercise, do you have that agency worker data easily to hand? The London Borough of Barnet didn’t. Earlier this year, the Tribunal awarded each LBB employee who was not given complete and accurate agency worker data between 40 and 60 days’ pay; not a sum to be sniffed at, particularly as there were over 150 employees involved. Depending on the circumstances, a Tribunal could make an award of up to 90 days’ pay per employee.  Decided case law makes it clear that this will depend on your degree of compliance with the obligation to provide the information and not whether the employee’s earlier or fuller possession of it would have made any difference.  The size of the award in this union-backed case makes it clear that Tribunals do not regard the agency worker information requirement as trivial or as less important than the more established information and consultation obligations.  

The key message for hirers of agency workers is either to centralise all the required agency worker data or to contractually require their agencies to do so. That way, the data will be easily accessible from the start of any relevant consultation processes.  But remember, this is not their personal data – merely how many agency workers you have, which bits of the business they work in and the types of work they do.  If your business might find itself engaged in redundancies or a TUPE transfer at relatively short notice (for example, the loss of a major customer contract), the preparatory work will have been time well spent.

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