This article was first published in UK Recruiter, 28 September 2011.
Neil Johnston continues his series of articles on the new Agency Workers Regulations (“AWR”). Read the first, second and third in the series of Neil's articles on the Agency Workers Regulations.
Over the past few months we have examined who will be caught by the AWR, the extent of the principle of equality, what the Day 1 rights and Week 12 rights mean and how they will operate in practice. This article will examine the remedies available to temps for a breach of the AWR and where liability for a breach may fall in the event of a breach.
Anti avoidance
Last month we explored how the 12 week qualifying period for equal treatment in respect of basic employment terms and conditions will work in practice and the events which cause the 12 week clock to stop ticking and return to zero. Readers should note that the AWR contain a number of anti avoidance provisions that significantly limit the scope for Agencies and Hirers to seek to circumvent the effect of the AWR by using the events which cause the 12 week clock to re-set to zero. If a Tribunal finds that an Agency and / or Hirer has sought to manipulate events to avoid the effect of the AWR then either or both could be liable for a fine of up to £5,000.
That said, there are specific exemptions within the AWR which can be used to avoid the impact of the AWR, including the Swedish derogation model. We will explore this further in next month’s article.
Right to information
The AWR gives temps who suspect that their rights have been infringed the right to make a request for information in relation to the basic employment terms and conditions of comparable employees and Day 1 rights to shared facilities and information about vacancies.
The request should first be made to the Agency who has 28 days to respond to the request. If the Agency does not respond the temp can make the same request to the Hirer who has 28 days to provide the information requested. Whilst there is no statutory requirement on either the Agency or the Hirer to provide this information, failure to do so can lead to an adverse inference being drawn by an Employment Tribunal as to the reasons why the Agency and /or Hirer failed to provide the information requested.
Where does liability fall
Hirers will be liable for any breach of the Day 1 rights. However, who is liable for a breach of Week 12 rights is a question of fact. At the risk of stating the obvious, where the Agency is liable for any breach of the AWR the Agency will be liable and where the Hirer is liable for any breach of the AWR the Hirer will be liable.
Agencies and Hirers should note that it is likely that a temp seeking to bring a claim for breach of the AWR will seek to join both the Agency and Hirer to the claim and the question of who is liable for a breach of the AWR will be an issue of fact that the Employment Tribunal will explore and then determine.
A prudent Agency will therefore use a questionnaire to raise questions of a Hirer about the matters covered by the Week 12 rights to enable a fee to be agreed and the Agency to ensure compliance with the AWR before the temp starts to work for the Hirer. If the Hirer fails to provide the Agency with the correct information then they will be liable for any breach of the AWR. However, if the Hirer has provided the Agency with the appropriate information, and a prudent Hirer will seek to provide the Agency this information in writing in any event, the Agency is likely to be liable for any breach of the AWR.
Employment Tribunal claims
If a temp does feel that the AWR have been breached they can bring a claim before an Employment Tribunal. Any complaint should be brought within three months of the date that the alleged breach of the AWR occurred.
If the temp is successful in a claim the Tribunal may award compensation, which will normally be not less than two weeks pay. Whilst this does not seem like much, there is no cap on the amount of compensation that can be awarded. Therefore, if it transpires that over a long period of time after 1 October 2011 a temp is paid less than they should have been paid, s/he can recoup the entire differential in pay. Further, if a large number of temps have been paid less than they should have been, the potential compensation for all the temps could be a large sum.
Other remedies for an infringement of the AWR are a declaration as to their rights, which could be used against the Agency and / or Hirer by other temps and a recommendation that the Agency and / or Hirer take action to reduce the effect of the actions complained about.
Next month
In next month’s article we will examine the impact the AWR is expected to have on the temps market and different models that can be adopted to limit the impact of the AWR.
Neil Johnston is a Senior Associate in the Employment and Pensions Group at Field Fisher Waterhouse LLP.