London Underground Ltd v Adelaide Amissah and Others

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Lord Sales,Lord Justice Moylan
Judgment Date19 February 2019
Neutral Citation[2019] EWCA Civ 125
Docket NumberCase No: A2/2017/0040
CourtCourt of Appeal (Civil Division)
Date19 February 2019

[2019] EWCA Civ 125

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Employment Appeal Tribunal

Mitting J

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lord Sales

and

Lord Justice Moylan

Case No: A2/2017/0040

Between:
London Underground Ltd
Appellant
and
Adelaide Amissah and Others
Respondents

Ms Lydia Seymour (instructed by Eversheds Sutherland LLP) for the Appellant

Mr Thomas Linden QC and Mr David Mitchell (instructed by Waring & Co) for the Respondents

Hearing date: 3 October 2018

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

The Claimants in these proceedings were employed, during the period with which we are concerned, by a company which has since been dissolved called Trainpeople.co.uk Ltd (“TP”), which was an agency supplying temporary workers. TP provided the Claimants' services to the Appellant, London Underground Ltd (“LUL”), at a group of underground stations in North-West London (“the Wembley group”). The contract to supply agency workers for the Wembley group stations was originally made between TP and a train operating company called Silverlink, but LUL inherited the arrangement when it took over the stations in 2007. A new contract was entered into between TP and LUL in January 2011 but it expired on 16 January 2013 and was not renewed.

2

The Agency Workers Regulations 2010 came into force on 1 October 2011: they implement EU Directive 2008/104/EC. Putting it very broadly, the effect of regulation 5 of the Regulations is to give agency workers the right to the same terms as to pay (among other things) as they would enjoy if they were directly employed by the hirer: I refer to that for short as a right to equalisation. Both the employer and the hirer may be liable for any breach of that right, but there are provisions for apportionment. TP initially asserted, and LUL accepted, that the Regulations did not apply to the arrangements under which the Claimants were employed, because they fell within the terms of the so-called “Swedish derogation”; but in due course LUL decided that they did apply, and it agreed both to pay TP for the future on the basis that the workers whom it supplied would be paid at the equalised rates and to pay it an amount covering the previous under-payment of the staff in question. TP paid the Claimants on the basis of the correct rates from mid-October 2012 until the termination of the agreement in January 2013, but it never paid them the difference in respect of the earlier period, despite having been put in funds by LUL to do so. It went into involuntary liquidation in November 2013.

3

The Claimants brought the present proceedings on 3 September 2012 against both TP and LUL claiming that their rights under the Regulations had been breached in various respects. The case seems to have proceeded very slowly, and TP went into liquidation before any substantive hearing occurred, leaving the case to proceed in substance against LUL only. Eventually, however, a number of issues of principle were heard by Employment Judge Snelson in the London Central Tribunal over several days in February 2015. The cases of two Claimants – Mr Chellapan and Mr Parekh – were taken as lead cases.

4

The Employment Judge promulgated his Judgment, with clear and full Reasons, on 27 March 2015. Paragraph (3) of the Judgment reads, so far as material:

“The claims under … reg 5 (1) … in respect of terms governing hourly pay is [ sic] well-founded and liability therefor is apportioned as to 50% to [LUL]”.

He did not have to make any finding about the extent of the difference between their actual pay and the equalised pay to which the Claimants were entitled, but it was clearly very substantial since some comparators were paid at almost double their rates.

5

A further hearing followed on 14 and 15 October 2015 to work out the consequences of that decision. Notwithstanding his finding that LUL was liable (in part) for the breach which he had found, the Judge held, for reasons which I explain below, that it was not liable to pay any compensation, and he accordingly dismissed the claim (save as regards two weeks' pay under a different provision of the Regulations with which we are not concerned). Although that order was made at the conclusion of the hearing, his Reasons were not sent to the parties until 13 January 2016: again, they are clear and thoughtful.

6

The Claimants appealed to the EAT. By a judgment dated 13 December 2016 Mitting J allowed the appeal and remitted the case to the ET for an assessment of the compensation due to the Claimants from LUL, save in the case of Mr Parekh whose claim had failed on other grounds. This is LUL's appeal against that decision.

7

LUL has been represented before us by Ms Lydia Seymour of counsel, who represented it also in the ET and the EAT. The Claimants have been represented by Mr Thomas Linden QC, leading Mr David Mitchell. Mr Mitchell also appeared in the EAT and the ET.

THE REGULATIONS

8

Part 1 of the Regulations contains the definitions of the key concepts of “hirer”, “agency worker” and “temporary work agency”, but nothing turns on them in this case since it is common ground that TP was a temporary work agency which supplied LUL with the services of the Claimants as agency workers and that LUL was accordingly the hirer. But I need to refer in detail to some of the provisions of Part 2 (“Rights”) and Part 3 (“Liability, Protection and Remedies”).

PART 2

9

Part 2, which is headed “Rights”, provides for three kinds of rights, under regulations 5, 12 and 13. We are concerned on this appeal only with regulation 5, which is headed “Rights of agency workers in relation to the basic working and employment conditions”; but I should note that regulation 12 also confers rights to access to “collective facilities and amenities” and that regulation 13 confers rights to access to permanent employment opportunities with the hirer.

10

Regulation 5 (1) reads:

“(1) Subject to regulation 7, an agency worker (A) shall be entitled to the same basic working and employment conditions as A would be entitled to for doing the same job had A been recruited by the hirer —

(a) other than by using the services of a temporary work agency; and

(b) at the time the qualifying period commenced.”

Paragraph (2) defines “basic working and employment conditions”, in the case where A would have been recruited as an employee, as “the relevant terms and conditions that are ordinarily included in the contracts of the employee”. “Relevant terms and conditions” is defined in regulation 6 (1) as “terms and conditions relating to: (a) pay; (b) the duration of working time; (c) night work; (d) rest periods; (e) rest breaks; and (f) annual leave”.

11

Regulation 7 provides that regulation 5 does not apply unless an agency worker has completed a qualifying period by working in the same role for the same hirer for twelve weeks. The effect of that is that although the Regulations came into force on 1 October 2012 the earliest that any worker could enjoy any rights under them was 24 December 2012.

12

Regulation 10, which is headed “Permanent contracts providing for pay between assignments”, contains the Swedish derogation, which qualifies the right conferred by regulation 5 (1). Again, I need not explain the details, and I refer to it only because of the part which TP's original reliance on it played in the events which give rise to the issue before us.

PART 3

13

Part 3 is headed “Liability, Protection and Remedies” and as that title suggests it contains a rather disparate group of provisions. I need to refer to regulations 14, 17 and 18.

14

Regulation 14 is headed “Liability of temporary work agency and hirer”. Its purpose is to allocate liability, as between the agency and the hirer, for any breach of a worker's rights under Part 2. Paragraphs (1) and (2) read:

“(1) A temporary work agency shall be liable for any breach of regulation 5, to the extent that it is responsible for that breach.

(2) Subject to paragraph (3), the hirer shall be liable for any breach of regulation 5, to the extent that it is responsible for that breach.”

Paragraph (3), to which paragraph (2) is expressed to be subject, provides that the agency will not be liable in circumstances where, very broadly, it has done its best to obtain from the hirer the information necessary for the comparison required under regulation 5 and has acted reasonably in the light of that information. The provisions are very elaborate and I need not set them out. The paragraph concludes:

“… and to the extent that the temporary work agency is not liable under this provision, the hirer shall be liable.”

Paragraph (6) provides that the hirer alone will be liable for any breach of regulations 12 and 13. Paragraph (7) allocates liability for acts of victimisation contrary to regulation 17 (as to which see below): in short, the agency and the hirer are each liable for their own acts.

15

Regulation 17 provides for protection of an agency workers against being dismissed or subjected to a detriment on various grounds which can be loosely described as victimisation.

16

Paragraph 18 is headed “Complaints to employment tribunals etc”. It deals with a number of different matters. I take the relevant parts in turn.

17

Paragraph (2) confers the basic right on an agency worker to bring a complaint in the ET of an infringement of the rights identified above. It reads (so far as material):

“… [A]n agency worker may present a complaint to an employment tribunal that a temporary work agency or the hirer has infringed a right conferred on the agency worker by regulation 5, 12, 13 or 17 (2).”

18

Paragraph (8) specifies the remedies available to the ET when it finds a complaint to be well-founded. It reads:

“Where an employment tribunal finds that...

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2 cases
  • Mr F Hussain v Government Legal Department: 2202282/2019
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    • Employment Tribunal
    • 13 December 2019
    ...can be liable for a breach of Reg 5 to the extent that each is 'responsible for that breach', Reg 14, London Underground Ltd v Amissah [2019] EWCA Civ 125, [2019] IRLR ph outcome jment and case mngmnt 1.5.14 version Case Number 2202282/2019 72. Reg 14 provides, “14 Liability of temporary wo......
  • Mr A Hay v ERM Certification and Verification Services Ltd (T/a ERM CVS LTD): 2203460/2020
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    ...(8)(b).” 18. The correct approach to compensation was considered by the Court of Appeal in London Underground Ltd v Amissah and Others [2019] EWCA Civ 125: 1) The Tribunal must identify the infringement – this is not simply a right to the same terms and conditions, but a right to actually r......

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