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Osborne Clarke Gives Guidance On Barnet

Osborne Clarke Gives Guidance On Barnet

Barnet Agency Worker Regulation class action – awards were to employees rather than to agency workers

Contrary to first impressions published on Unison’s website about the recent AWR-related decision against the London Borough of Barnet, the awards were made to council employees following their employer’s failure to give information about agency worker usage in a TUPE /redundancy situation – the awards were not made against staffing companies, who had done nothing wrong.

This is an area that often confuses but the key points to note are that:

AWR is not just about equal pay rights. The legislation introducing the AWR also imposed obligations on employers involved in a TUPE transfer/collective redundancy to provide information about agency workers’ usage in relevant roles.  This is likely to be a difficult and time consuming exercise for many hiring organisations, particularly if they use a large number of agencies and for a wide range of roles. 

The hirer’s failure to provide information about agency worker usage in a collective redundancy situation was strongly penalised.

Unions and others will closely scrutinise the use of agency workers and contract labour in any large scale redundancy situation.

As widely predicted unions are using the AWR regime to protect the jobs of permanent employees – not agency workers

Public sector outsourcings are a trap for the unwary.

The Barnet case resulted in the hirer (Barnet Council) being ordered to pay out to affected (former) employees of Barnet council. The judgment concerned three different scenarios which the trade union successfully argued gave rise to a right to payment.

1.         Award 1  - awarded because Barnet did not provide the necessary agency worker information to its (former) employees during the consultation period which led to their  redundancy

2.         Award 2 – awarded because Barnet did not provide the necessary agency worker information to its (former) housing employees during the consultation period which led to the TUPE transfer of their employment to another company

3.         Award 3 - awarded because Barnet did not provide the necessary agency worker information to its (former) parking employees during the consultation period which led to the transfer of their employment to another company

The amount of the award varied depending on how significant the Tribunal felt the non-provision of information was in each situation. Award 1 was sanctioned most harshly because the Tribunal felt that the information about agency workers was central to the consultation process which should have aimed “to save people’s jobs if at all possible”.

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