Consultation duties and the Agency Workers Regulations

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04 October 2011

Impact of the Agency Workers Regulations 2010 on employer consultation duties

On 1 October 2011 the Agency Workers Regulations 2010 ("the Regulations") came into force. The headline purpose of the Regulations is to provide equal treatment for agency workers and accompanying day 1 and week 12 rights. Less well advertised, but still of considerable importance, is the effect of the Regulations on employers' consultation duties in both collective redundancy and TUPE transfer scenarios.

Provision of additional information

The Regulations mean that employers now need to provide the appropriate representatives in both a collective redundancy process (via a section 188 letter) and in a TUPE transfer with additional details. These additional details are as follows:

  • the number of agency workers working temporarily for and under the supervision and direction of the employer
  • the parts of the employer's undertaking in which those agency workers are working
  • the type of work those agency workers are carrying out.

These are significant new obligations particularly for larger employers who may use a substantial number of agency workers. A failure to provide the additional information required may lead to claims for protective awards of up to 90 days' uncapped pay per affected employee.

Interestingly, although the aim of the Regulations is to provide increased protection for agency workers, it seems likely that this new requirement could make them more vulnerable, particularly in relation to future collective redundancy exercises. If employee representatives are made aware of the number of agency workers in use, it is likely that they will call for a reduction in their use so as to reduce or entirely avoid the proposed redundancies.

Our briefing The Agency Workers Regulations - what do they mean for your business? considers the impact of the Regulations further.  If you would like more information, or specific advice, on the impact of the Agency Workers Regulations 2010 on your business, please contact Roger Bull on 0117 939 2000 or email roger.bull@burges-salmon.com, or contact the lawyer at Burges Salmon with whom you usually deal.

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