Cases involving a breach of the Agency Workers Regulations 2010 (AWR) are rare, but the tribunal’s decision in Stevens v Northolt High School ET/3300621/2014 shows how hirers can be liable where the agency worker is not paid the same amount as a permanent worker doing an equivalent job when the contract goes beyond 12 weeks.

Ms Stevens was supplied by an agency to the school (the ‘hirer’) as temporary head of music. The agency paid her a fee for the work. She subsequently brought a claim against both the hirer and the agency for a breach of Reg 5 of the AWR on the basis that having completed 12-weeks in the job she should have been paid the same salary as that she would have been received had she been directly recruited by the hirer to carry out that role. Both the hirer and the agency agreed that under the AWR Stevens was entitled to have been paid an additional £98 per day for 111 days, i.e. a total of £10,878. But the question was, who was liable – the hirer or the agency?

Under the AWR both the hirer and the agency are potentially liable based on their respectively responsible for the breach. An agency can avoid liability if it has obtained or taken reasonable steps to obtain the information about the terms and conditions that the hirer, applies to a comparable permanent worker, but in this case, despite repeated requests, from the agency, the hirer had not supplied the information. In the circumstances the tribunal held that the hirer should pay the £10,878 underpayment to Ms Stevens.

The practical implications for both the hirer and the agency are two-fold: (i) upon engagement, the hirer should supply the agency with the terms and conditions applying to a comparable permanent employee, so the position is clear and a fair agreement can be reached on the agency fee; (ii) both the hirer and the agency should identify the date when an agency worker completes the 12-week qualifying period to ensure compliance with Reg 5.

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