Failure to Provide Agency Worker Information Led to Protective Awards

Protective awards of between 40 and 60 days’ pay have been made after a union complained that the employer had failed to provide information about agency workers during collective consultation.

In Unison v London Borough of Barnet, the employer was involved in two TUPE transfers and a collective redundancy exercise where 97 employees were at risk of redundancy.  Under changes made to the information and consultation provisions of the relevant legislation by the Agency Worker Regulations, employers must now give the appropriate representatives information about the number of agency workers working for the employer, the parts of the undertaking in which they are working and the type of work they are carrying out.

Neither the union nor the employer was aware of these changes but the union did request information about the employer’s use of agency workers.  Although the employer provided some information about which teams used agency workers, the information was incomplete and a complete list was not provided.

The union brought a claim for a protective award which was upheld by the tribunal.  The tribunal awarded a protective award of 60 days’ full pay in relation to the redundancy exercise, 50 days’ full pay in relation to one of the TUPE transfers and 40 days’ full pay in relation to the other.  It started with the maximum 90 days’ pay and then reduced it taking account of the fact that:

• the information was relatively easy to produce;
• it had been produced in the past;
• it was produced again shortly after the complaint was made;
• the HR team was aware that the union wanted the information; and
• the information was central to the consultation process.

The amounts awarded differed according to how important the information was in the particular consultation process.  The tribunal viewed the information as of most importance to the collective redundancy exercise (presumably as reducing the use of agency workers may lead to fewer redundancies) and therefore made a higher award than in relation to the TUPE transfers.

This was a costly mistake for the employer in this case.  The protective awards were made in respect of all employees made redundant and, in relation to the TUPE transfers, all employees who either transferred or were made redundant as a result of the transfers.  Protective awards are based on full pay, not capped pay. The case acts as a reminder for employers of the need to supply information about the use of agency workers in collective consultation exercises.