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.