The Court of Appeal in the London Underground v Amissah case has ruled that an employment tribunal can 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.
The case arose when agency staff from Trainpeople brought claims against London Underground for breaches of the Agency Workers Regulations, as they were receiving less pay than comparable Underground staff. London Underground had previously paid the agency to cover the underpayments, but the tribunal uncovered that the agency had dishonestly withheld money to staff. The subsequently went into liquidation.
The tribunal apportioned equal liability between the agency and London Underground 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. While 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 culpable. London Underground had dealt with the particular agency through choice and so it, not the claimants, carry the burden of the agency’s dishonesty, the court ruled. The assessment of compensation was remitted to the tribunal.
