Beware of Obligation to Provide Agency Worker Information

An employer has been ordered to pay a protective award of 45 days’ pay for each employee made redundant after it failed to provide information about its use of agency workers during collective consultation.  This was despite the fact that it did not use agency workers at the workplace which was closing down.

In Unison v Capita Business Services Limited, the employer planned to relocate one of its call centres from London to Southampton, resulting in 36 proposed redundancies.  It started the collective consultation process by providing information about its proposals to Unison, the recognised trade union.  However, it did not provide any information about its use of agency workers, despite being requested to do so by Unison.  Unison brought a claim, arguing that the employer’s failure to provide information about its use of agency workers meant it was in breach of its collective consultation obligations.  The employment tribunal upheld the claim and awarded a protective award of 45 days’ full pay in respect of each employee made redundant. 

Commenting on the decision, Tina Wisener said:

“The employment tribunal’s decision shows that the duties imposed on an employer by the legislation must be strictly followed.  Under the Trade Union and Labour Relations (Consolidation) Act 1992, an employer must provide information about its use of agency workers across the whole of its business.  The fact that it does not use agency workers at the workplace or in the part of the business which is being affected by redundancies does not limit its obligation in any way.  Providing information about the use of agency workers means that employee representatives have the opportunity to make representations about the redeployment of redundant staff to roles being performed by agency workers elsewhere in the business.

Although the tribunal recognised the difficulties for employers of maintaining a central record of their use of agency workers, it did not consider that this could affect the proper interpretation of the legislation. On a practical level, employers will need to keep a database of agency workers used across their whole organisation and keep it up to date.  This will need to include details of the parts of the undertaking where the agency workers are working and the type of work they are carrying out as this is the information which must be provided under the legislation.

There is also an obligation under the Transfer of Undertaking (Protection of Employment) Regulations 2006 to provide identical information about the use of agency workers where a business or part of a business is being transferred.  The decision in this case means that an employer will have to provide information about its use of agency workers throughout its business, even where only part of its business is being transferred or, for example, where a service is being contracted-out.   There appears to be less of a justification for such a broad requirement in this context but logically the provisions will have to be given the same wide meaning.

This is the second employment tribunal decision recently where an employer has been found to have breached collective consultation obligations by failing to provide information about the use of agency workers.  In Unison v London Borough of Barnet , the employer was ordered to pay protective awards of between 40 and 60 days’ pay.  In both cases the employer was unaware of the requirement to provide such information, although it has been in place since October 2011.   Employers need to make sure that those responsible for collective consultation are aware of this requirement and that the provision of agency worker information is built in to collective consultation procedures.”