London Underground Ltd v Amissah & Ors

Regulation 5(1) of the Agency Workers Regulations 2010 gives an agency worker a substantive right to receive equalised basic working and employment conditions, including the comparator’s pay on each pay day. A breach occurs on each underpayment. The remedy is statutory compensation under regulation 18, rather than a debt claim or an unlawful-deduction claim under the Employment Rights Act 1996. Compensation ordinarily equals the underpayment. Later agency dishonesty, insolvency, or delay by the worker in pursuing the agency does not break the connection with the original breach. Regulation 18(9) ordinarily reflects the parties’ relative responsibility under regulation 14. A reduction below that share is exceptional and was unjustified where the workers were blameless.

Agency workers supplied by Trainpeople.co.uk Ltd claimed equalised pay from London Underground Ltd under regulation 5 of the Agency Workers Regulations 2010. The Employment Tribunal found a breach and apportioned liability for the pay infringement equally between the agency and London Underground, but awarded no compensation. It treated the workers’ loss as resulting from the agency’s later failure to pay, their failure to enforce the debt promptly, and the agency’s liquidation. The Employment Appeal Tribunal allowed the workers’ appeal and remitted the case for assessment of compensation, save for Mr Parekh whose claim failed on other grounds. The Court of Appeal considered the proper assessment of attributable loss and the relationship between regulations 14 and 18(9).

1. Appeal and remittal. The appeal was dismissed, but the remittal was confined to assessing compensation under regulation 18(10). London Underground was liable for 50% of the compensation.
2. Nature of the right. Regulation 5(1) creates a substantive right to receive equalised benefits. In the case of pay, the right is to be paid the comparator’s rate on each pay day. A breach therefore occurs whenever the agency worker is underpaid. The Regulations provide the remedy, which is statutory compensation under regulation 18(8)(b), not a claim for wages or unlawful deduction from wages under Part II of the Employment Rights Act 1996.
3. Compensation. Liability under regulation 14 is apportioned according to the parties’ relative responsibility, including causation and culpability. Under regulation 18(10), the ordinary measure of loss is the difference between the pay received and the equalised pay due. Regulation 18(11)(b) produces the same result because the workers were entitled to the enhanced pay. The just-and-equitable formula primarily serves to allow flexibility in proving loss, consistently with Norton Tool Ltd v Tewson [1972] ICR 501 and Dunnachie v Kingston-upon-Hull City Council [2004] UKHL 36, [2005] 1 AC 226.
4. The agency’s later dishonesty, failure to pass on money funded by London Underground, liquidation, and the workers’ delay in pursuing the agency did not break the connection between the original underpayments and the loss. The EAT’s counterfactual inquiry into whether compliant written terms would have been issued was based on a mischaracterisation of the infringement.
5. Apportionment. Regulation 18(9) substantially overlaps with regulation 14. Although the just-and-equitable wording may exceptionally justify awarding less than the amount for which a respondent is responsible, such cases ordinarily involve serious misconduct by the claimant, of the kind illustrated by W. Devis & Sons Ltd. v Atkins [1977] AC 931. There was no misconduct by the workers. London Underground’s funding of the agency and the agency’s dishonesty did not justify relieving it of its 50% share.

• Court of Appeal (Civil Division): in [2019] EWCA Civ 125, dismissed London Underground’s appeal and limited the remittal to assessment of compensation under regulation 18(10), with 50% payable by London Underground.
• Employment Appeal Tribunal: on 13 December 2016, allowed the workers’ appeal and remitted the case for assessment of compensation, save for Mr Parekh.
• Employment Tribunal: found the pay claims well-founded and apportioned liability 50% to London Underground. On the remedy issue it awarded no compensation, apart from two weeks’ pay under another provision.