Following the implementation of the Agency Worker Regulations 2010 (AWR) on 1 October 2011, amendments were made to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE Regulations”) and the legislation governing collective redundancy consultation (Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).
The amendments mean that for the purposes of consultation on both collective redundancy and TUPE transfers, employers are required to provide the appropriate employee representatives with details of:
(a) The number of agency workers working temporarily for and under the supervision and direction of the employer;
(b) The parts of the employer’s undertaking which those agency workers are working in; and
(c) The type of work those agency workers are carrying out.
The recent decision of the Employment Tribunal in Unison v (1) London Borough of Barnet (2) NSL Limited (3302128/2012) is one of the first which deals with the effect of the amended legislation on the duties of employers to consult employee representatives during collective redundancy exercises and TUPE transfers, and specifically in respect of the provision of agency worker information.
Unison v (1) London Borough of Barnet (2) NSL Limited – applying the law
On 26 October 2011, London Borough of Barnet (“Barnet”) gave notice of redundancies to Unison which placed 97 employees at risk. During the consultation process, Unison requested information relating to the agency workers however the full information was not forthcoming. Redundancies took effect on 13 March 2012 and 16 employees were made compulsorily redundant (the “Redundancies”).
In April and May 2012, a series of TUPE transfers took place from Barnet to Barnet Homes and NSL (the “Transfers”). Again in these situations, Unison had requested information from Barnet relating to agency workers but was not provided with the full information.
In both the Redundancies and the Transfers, the Employment Tribunal accepted that:
(a) Barnet had provided Unison with the number of agency workers working temporarily for and under the supervision of the hirer;
(b) Barnet had not provided Unison with sufficient information about the parts of the employer’s undertaking which those agency workers were working in; and
(c) There was a complete failure by Barnet to provide Unison with information about the type of work those agency workers were carrying out.
What are the consequences of breaching the legislation?
Under the provisions of TULRCA and the TUPE Regulations, if an employer has failed to provide the relevant information on agency workers, the Employment Tribunal may make an award of up to13 weeks’ pay per employee.
In Barnet, when considering whether to make an award, the Tribunal took into account the following factors:
- How easy it was for the employer to provide the information on agency workers. In Barnet, the information had been produced in the past and was produced shortly after these issues; and
- The fact that Barnet was aware that Unison wanted this information; and
- That the information was central to the consultation process.
With the Redundancies, the Tribunal held that failing to provide information on the type of work agency workers were carrying out amounted to a serious breach. This was said to be particularly so in a consultation process where the ultimate aim is to save jobs. Accordingly, the Tribunal made an award of 60 days’ pay to each employee that was made redundant. In respect of the Transfers, the Tribunal made an award of 40 or 50 days’ pay depending on the distance the employees were moving.
Lessons to be learnt
Given that this case is only a Tribunal decision and not an Employment Appeal Tribunal decision, it is not binding on other Tribunals; however the decision in Barnet is important in that it is one of the first decisions to deal with the application of the amended TULCRA and TUPE Regulations in respect of the provision of agency worker information. The Tribunal is clear in its Judgment that information regarding agency workers is required even in TUPE transfers, an area in which in the past, the information may not have been provided or even seemed particularly relevant. Employers should therefore ensure they are in close communication with their temporary labour providers to ensure they have accurate and readily available information on agency workers in their organisation and look to make full and frank disclosure of information concerning agency workers in line with the legislation at the earliest opportunity during the consultation process.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.