Can an employment tribunal award compensation for a breach of the Agency Workers Regulations 2010, and reduce the award against a particular Respondent, when it is just and equitable to do so?
Yes, but only in exceptional cases, held the Court of Appeal in London Underground v Amissah.
London Underground engaged staff through an agency, Trainpeople. The agency staff brought claims against London Underground for breaches of the Agency Workers Regulations as they were paid less than comparable Underground staff.
London Underground had previously paid the agency to cover the underpayments, but (as the tribunal found out) the agency had dishonestly not paid over that money to the agency staff.
The agency then went into liquidation.
The tribunal apportioned liability between the agency and London Underground at 50/50, but, when assessing the amount of compensation payable, applied the ‘just and equitable’ test in the Regulations, awarding the Claimants no compensation, as London Underground would ‘pay twice’.
The Court of Appeal held that it was wrong not to award compensation against London Underground. Whilst in principle, a tribunal could order a Respondent to pay less compensation than it was actually held liable for, that would be exceptional, and where the Claimant was blameworthy.
London Underground had chosen to deal with the particular agency and so it, not the Claimants, should bear the burden of the agency’s dishonesty. The assessment of compensation was remitted to the tribunal.