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Protective award for failing to provide information on agency workers

A tribunal has found that Barnet Council breached its collective redundancy and TUPE consultation obligations by failing to provide adequate information on its agency workers. The Council was ordered to pay a protective award to affected employees.

Obligation to provide information on agency workers

An employer carrying out collective redundancy or TUPE consultation is under an obligation to provide appropriate representatives with certain information in writing. Since the Agency Workers Regulations were introduced in October 2011 that information must include details of the number of agency workers engaged; the areas of the business in which agency workers are being used; and the type of work being carried out by agency workers. A breach can lead to a protective award of up to 90 days’ pay for each redundant employee and of up to 13 weeks’ pay for each employee affected by a TUPE transfer.

Unison v London Borough of Barnet

Unison v London Borough of Barnet involved a redundancy exercise carried out across Barnet council and two TUPE transfers, one of housing employees and the other of parking staff. The redundancy exercise resulted in 16 dismissals and the TUPE transfers led to over 100 employees being transferred.

Some information on agency workers was provided during consultation but it was insufficient. In particular, not enough information was given about the areas of the business in which agency staff were being used, nor about the type of work being carried out.

When calculating a protective award, a tribunal starts with the maximum award and then reduces it if there are any mitigating factors.

The tribunal considered the breach to be most serious in relation to the redundancies. If the information had been provided, the number of agency staff could have been reduced leading to a smaller number of redundancy dismissals. 60 days’ pay was awarded to the 16 redundant employees.

The tribunal’s view was that the failure to provide information on the agency workers was less important in the context of the TUPE transfers. 40 days’ pay was awarded to the transferred housing employees and 50 days’ pay to the parking employees. It seems that those affected by the transfer of the parking service were awarded more partly because at that point the Council had been made aware of their breach but failed to remedy it.

The requirement to supply details on the use of agency workers is sometimes overlooked. However, this decision is a reminder of the consequences of doing so.

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