What are the potential consequences for an employer of failing to comply with the provisions of the Agency Workers Regulations 2010?
An employer may face an employment tribunal claim from an agency worker where he or she believes that there has been a breach of key provisions of the Agency Workers Regulations 2010 (SI 2010/93), these being:
- reg.5 - the right to the same basic working and employment conditions that the worker would have received for the same job if he or she had been recruited directly;
- regs.12 and 13 - the right to access facilities and to be informed of any relevant permanent posts with the hirer; and
- reg.17(2) - the right not to be subjected to a detriment in relation to the Regulations.
A tribunal can make a declaration, order payment of compensation and/or make recommendations for action to be taken. Overall, a tribunal must take such steps and award such compensation as it considers "just and equitable". It must look at any loss that has resulted and take account of expenses reasonably incurred by the claimant and the amount of any loss of benefit.
In the case of a breach of reg.5, compensation should be no less than two weeks' pay, unless that would not be just and equitable. If the employer has fallen foul of the anti-avoidance provisions under reg.9 by structuring assignments to prevent reg.5 applying, the tribunal can make an additional award of up to £5,000.
Only the hirer can be responsible for breaches of regs.12 and 13. Liability for breaches of reg.5 can be apportioned to the temporary work agency and the hirer to the extent that they each have responsibility for the infringement.