Amissah v Trainpeople.co.uk Ltd

When compensation is sought from a hirer for an infringement of regulation 5 of the Agency Workers Regulations 2010, the tribunal must identify the infringement, each respondent’s responsibility, whether compensation should be ordered, and the amount that is just and equitable.

Loss is assessed by comparing what should have happened but for the infringement with what actually happened. The assessment must begin with the infringement and may require findings about whether compliant terms would have resulted in payment, complaints, litigation, continued employment or recovery under the statutory insolvency scheme. The hirer’s payment to the agency does not necessarily extinguish the agency worker’s compensatory claim. It is a relevant factor in the just and equitable assessment, but must be balanced against the hirer’s responsibility and the worker’s inability reasonably to be expected to pursue costly enforcement proceedings.

Thirty-one agency workers employed by Trainpeople.co.uk Ltd worked at London Underground stations. After the qualifying period under the Agency Workers Regulations 2010, they were entitled to the same basic working and employment conditions as comparable London Underground employees.

The Employment Tribunal found that the entitlement was not reflected in their terms until 15 October 2012. It held Trainpeople and London Underground equally responsible for the infringement, but awarded only two weeks’ pay against London Underground. Trainpeople had entered liquidation, and London Underground had paid Trainpeople sums calculated by reference to the adjusted terms.

The workers appealed on compensation. One worker also challenged a finding concerning a break in his assignment. The central issues were the proper assessment of loss attributable to the infringement and the just and equitable amount payable by the hirer.

1. Appeal allowed in part. The appeal succeeded on the general compensation grounds but failed on Mr Parekh’s individual ground. The remedy issue was remitted to a different Employment Tribunal Judge.
2. The tribunal must first identify the infringement, then the responsibility of the temporary work agency and hirer under regulations 14(1) and (2), decide whether to order compensation under regulation 18(8)(b), and determine the amount that is just and equitable having regard to the infringement and attributable loss under regulations 18(10) and (11)(b).
3. The loss attributable to the infringement included the benefit of wages at the higher rate applicable to comparable directly employed staff. The claim against London Underground was a claim for statutory compensation, not a claim for wages or unlawful deduction from wages. The agency worker’s direct right to payment of wages remained against the employer until compensation against the hirer was assessed.
4. The proper starting point was the traditional comparison between what should have happened but for the infringement and what actually happened. The tribunal should consider, by reference to evidence, whether compliant terms would have led to payment, complaints, proceedings, continued performance of the contract, or recovery under section 184 of the Employment Rights Act 1996. It was wrong to begin with the later non-payment and liquidation and treat those events as severing the connection with the infringement.
5. London Underground’s payment to Trainpeople was an important factor in the just and equitable assessment, but it was not decisive. Relevant countervailing factors included London Underground’s own responsibility for the infringement, its choice to use agency workers, and the fact that the workers could not reasonably be expected to undertake costly and uncertain enforcement proceedings against an employer whose financial position was doubtful and whose management conduct was suggestive of fraud.
6. The Employment Tribunal’s erroneous approach to attributable loss infected its conclusion that substantial compensation would not be just and equitable. A fresh tribunal was required to determine the compensation payable by London Underground, with any further evidence necessary.

• Employment Tribunal: determined liability and later awarded each claimant two weeks’ pay against London Underground, while making an adverse finding concerning Mr Parekh’s absence.
• Employment Appeal Tribunal: allowed the compensation appeal, dismissed Mr Parekh’s individual ground, and remitted assessment of compensation to another Employment Tribunal Judge.