Claim Under Agency Workers Regulations Dismissed by Employment Tribunal

OUTCOME: Dismissed

Case No. 2402673/2024

1

EMPLOYMENT TRIBUNALS Claimant: [redacted]

HELD AT:

Manchester (by [NAME] ([NAME]))

ON: 9, 10, 11 February 2026 BEFORE: Employment Judge Ficklin

REPRESENTATION:

Claimant: [redacted]

[NAME] of the [NAME] Mr [COUNSEL], counsel

JUDGMENT The JUDGMENT of the Tribunal is:

1. The claimant’s claim to have suffered less favourable treatment as an agency worker than a [NAME] recruited employee is not well-founded and is dismissed.

2. The claimant’s claim of failure of employer to pay, or that unauthorised deductions have been made, is not well-founded and is dismissed.

REASONS INTRODUCTION 1. In a claim form presented on 19 April 2024, following ACAS Early Conciliation, the claimant Mr [APPELLANT] brought complaints under the Agency Workers Regulations 2010 in respect of alleged underpayment after the qualifying period.

2. The [APPELLANT] is [RESPONDENT]. The claimant worked as a supply [NAME] at [COMPANY] (which is agreed to be the [NAME]) via

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2 the [APPELLANT] as the employment intermediary, and he initially named Wigan Metropolitan Borough Council and the Governing Board of [COMPANY] as additional respondents. Before me the only remaining claim is against [RESPONDENT].

3. ACAS Early Conciliation in respect of this [APPELLANT] ran from 19 February 2024 until 1 April 2024, and the claim form was presented on 19 April 2024. The claimant’s case is that, after completing the qualifying period of 12 weeks (which is agreed to have ended on 30 April 2023), he was entitled to equal treatment as to pay and was paid at rates below the rate to which he would have been entitled had he been recruited [NAME] by the [NAME]. He quantified the alleged shortfall across specified working days in May 2023, June to July 2023 and September to November 2023.

4. The [APPELLANT] denies that the claimant was entitled to the rate claimed. It contends that the claimant was supplied in the role of “cover [NAME]” rather than a mainscale teaching role, and that it relied on information provided by the [COMPANY] to comply with its obligations under the Agency Workers Regulations 2010 ([NAME]). The [APPELLANT] further contends that, if any breach were established, it is not liable by reason of the statutory defence in regulation 14(3) of the [NAME], on the basis that it took reasonable steps to obtain relevant information from the [NAME] and acted reasonably in determining and applying the claimant’s basic working and employment conditions.

5. The proceedings were case-managed at a preliminary hearing on 28 January 2025, at which the issues were set out for determination, including (i) whether there was a breach of regulation 5 as to pay after the qualifying period, (ii) whether the [APPELLANT] can establish the statutory defence in regulation 14(3), and (iii) if breach is found and the defence fails, the extent of the [APPELLANT]’s responsibility and what compensation is just and equitable. The record of that hearing notes that the claimant had withdrawn his complaints against Wigan Metropolitan Borough Council and the [COMPANY] after receiving £3,302.11 in settlement, and that he pursued the balance of £3,302.11 against the [APPELLANT].

AGREED ISSUES

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3 6. There was discussion about whether there was an unpaid wages claim as well as a claim under the Agency Worker Regulations, but the issues agreed in the hearing on 28 January 2025 relate to the [NAME] only: [COMPANY]'s [NAME] is agreed to be the [NAME] as defined in reg 2. The [APPELLANT] is agreed to be a temporary work agency within the meaning in reg 4. The end of the qualifying period is agreed to be 30 April 2023.

1. Was there a breach of regulation 5 in relation to the rate of pay the claimant received after the qualifying period? 1.1. Would the claimant have been entitled to a higher rate of pay if he had been recruited [NAME] by the [NAME]? 1.1.1. What work was the claimant doing at the [COMPANY]? 1.1.2. Did this entitle him to be paid at mainscale 6? 2. Can the [APPELLANT] rely on the statutory defence in reg 14(3)? Can it establish that: 2.1. it has obtained, or has taken reasonable steps to obtain, relevant information from the [NAME] about the basic working and employment conditions in force at the [NAME]'s business and the relevant terms and conditions of comparable employees; 2.2. where it has received this information, it has acted reasonably in determining the basic working and employment conditions to which the agency worker would be entitled at the end of the qualifying period, and 2.3. where it is responsible for applying those basic working and employment conditions to the agency worker, it has ensured that the agency worker has been treated accordingly.

3. If there was a breach of regulation 5 in respect of pay, and the [APPELLANT] cannot make out the statutory defence in reg 14(3), to what extent is it responsible for the infringement? The [APPELLANT] may be ordered to pay such compensation as is "just and equitable" having regard to their responsibility for the breach: reg 18(9). The claimant seeks payment of £3302.11, being the remaining part of the shortfall after a payment from the [COMPANY] and/or Council.

LAW 7. The Agency Workers Regulations 2010 materially state:

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4 Rights of agency workers in relation to the basic working and employment conditions 5.—(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 [NAME]— (a)other than by using the services of a temporary work agency; and (b)at the time the qualifying period commenced. (2) For the purposes of paragraph (1), the basic working and employment conditions are — (a)where A would have been recruited as an employee, the relevant terms and conditions that are ordinarily included in the contracts of employees of the [NAME]; (b)where A would have been recruited as [NAME], the relevant terms and conditions that are ordinarily included in the contracts of workers of the [NAME], whether by collective agreement or otherwise, including any variations in those relevant terms and conditions made at any time after the qualifying period commenced. (3) Paragraph (1) shall be deemed to have been complied with where— (a)an agency worker is working under the same relevant terms and conditions as an employee who is a comparable employee, and (b)the relevant terms and conditions of that comparable employee are terms and conditions ordinarily included in the contracts of employees, who are comparable employees of the [NAME], whether by collective agreement or otherwise. (4) For the purposes of paragraph (3) an employee is a comparable employee in relation to an agency worker if at the time when the breach of paragraph (1) is alleged to take place— (a)both that employee and the agency worker are— (i)working for and under the supervision and direction of the [NAME], and (ii)engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills; and (b)the employee works or is based at the same establishment as the agency worker or, where there is no comparable employee working or

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5 based at that establishment who satisfies the requirements of sub- paragraph (a), works or is based at a different establishment and satisfies those requirements. (5) An employee is not a comparable employee if that employee's employment has ceased.

Relevant terms and conditions 6.—(1) In regulation 5(2) and (3) “relevant terms and conditions” means 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. (2) For the purposes of paragraph (1)(a), “pay” means any sums payable to [NAME] of the [NAME] in connection with the worker's employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise, but excluding any payments or rewards within paragraph (3). (3) Those payments or rewards are— (a)any payment by way of occupational sick pay; (b)any payment by way of a pension, allowance or gratuity in connection with the worker's retirement or as compensation for loss of office; (c)any payment in respect of maternity, paternity[F4, parental bereavement] or adoption leave; (d)any payment referable to the worker's redundancy; (e)any payment or reward made pursuant to a [NAME]; (f)any bonus, incentive payment or reward which is not [NAME] attributable to the amount or quality of the work done by [NAME], and which is given to [NAME] for a reason other than the amount or quality of work done such as to encourage the worker's loyalty or to reward the worker's long-term service;

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6 (g)any payment for time off under Part 6 of the 1996 Act or section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 M5 (payment for time off for carrying out trade union duties etc); (h)a guarantee payment under section 28 of the 1996 Act; (i)any payment by way of an advance under an agreement for a loan or by way of an advance of pay (but without prejudice to the application of section 13 of the 1996 Act to any deduction made from the worker's wages in respect of any such advance); (j)any payment in respect of expenses incurred by the worker in carrying out the employment; and (k)any payment to the worker otherwise than in that person's capacity as [NAME]. ... Qualifying period 7.—(1) Regulation 5 does not apply unless an agency worker has completed the qualifying period. (2) To complete the qualifying period the agency worker must work in the same role with the same [NAME] for 12 continuous calendar weeks, during one or more assignments. ... Liability of temporary work agency and [NAME] 14.—(1) Subject to paragraph (3), a temporary work agency shall be liable for any breach of regulation 5, to the extent that it is responsible for that breach. (2) ...the [NAME] shall be liable for any breach of regulation 5, to the extent that it is responsible for that breach. (3) A temporary work agency shall not be liable for a breach of regulation 5 where it is established that the temporary work agency— (a)obtained, or has taken reasonable steps to obtain, relevant information from the [NAME]— (i)about the basic working and employment conditions in force in the [NAME]; (ii)if needed to assess compliance with regulation 5, about the relevant terms and conditions under which an employee of the [NAME] is working where—

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7 (aa)that employee is considered to be a comparable employee in relation to that agency worker for the purposes of regulation 5(4), and (bb)those terms and conditions are ordinarily included in the contract of such a comparable employee; and (iii)which explains the basis on which it is considered that the employee referred to in sub-paragraph (ii)(aa) is a comparable employee; (b)where it has received such information, has acted reasonably in determining what the agency worker's basic working and employment conditions should be at the end of the qualifying period and during the period after that until, in accordance with regulation 8, the agency worker ceases to be entitled to the rights conferred by regulation 5; and (c)ensured that where it has responsibility for applying those basic working and employment conditions to the agency worker, that agency worker has been treated in accordance with the determination described in sub- paragraph (b), and to the extent that the temporary work agency is not liable under this provision, the [NAME] shall be liable.

8. The Education (Specified Work) (England) Regulations 2012 materially state: Requirement to be qualified 3.—(1) Subject to regulation 4, a person may not carry out specified work in a [COMPANY] unless that person— (a)is a qualified [NAME]; ... ... Specified work 5.—(1) Each of the following activities is specified work for the purposes of these Regulations— (a)planning and preparing lessons and courses for pupils; (b)delivering lessons to pupils; (c)assessing the development, progress and attainment of pupils; and (d)reporting on the development, progress and attainment of pupils. (2) In paragraph (1)(b) “delivering” includes delivery via distance learning or computer aided techniques.

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8 ...

EVIDENCE 9. I heard evidence from the claimant on his own behalf. For the [APPELLANT] I heard from Ms [APPELLANT], [NAME] Director of [RESPONDENT] [COMPANY] (the Liverpool branch of the [APPELLANT]).

10. The hearing started with a 168-page core bundle, 15 pages of additional documents, and witness statements. The [APPELLANT] submitted a skeleton argument/ Opening Note and two cases, namely [NAME] v [COMPANY] 2014 WL 10246849 (2014) and [NAME] [NAME] v [COMPANY] and Others: 3201400/2017, both non-binding Employment Tribunal decisions. Mr [APPELLANT] for the claimant submitted written closing submissions as well as making oral submissions. I also accepted some further documents during the hearing, including the claimant's “Registration and Consent Form” from when he started work with the [APPELLANT], and copies of Regulations 5 and 14 of the [NAME].

FINDINGS OF FACT Background 11. The [APPELLANT] supplies teachers and other staff to various [NAME]. Among the classifications used for different levels of staff, the [APPELLANT] uses ‘scale’ [NAME] and ‘cover’ [NAME]. 'Scale' is understood to refer to “mainscale”, ie the England [NAME]. In England, teachers automatically advance up pay scales every year of full-time service according to the England [NAME].

12. A ‘scale’ [NAME] is a supply [NAME] taken on by the [NAME] as a [NAME] performing substantively the same duties as a [NAME], ie one that would be paid according to their position on the mainscale, and so must be paid commensurately. A ‘cover’ [NAME]’ is a qualified supply [NAME] who is not doing substantively the same job as a [NAME], and so may be paid less.

13. The claimant is agreed to be a qualified [NAME] and he worked as a full-time, [NAME] at various [NAME] from August 2015 to August 2022. It

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9 is not disputed that the claimant reached the pay level of mainscale 6 during that period.

14. In August 2022 the claimant contacted the [APPELLANT] to inquire about supply [NAME] roles. He signed the [APPELLANT]’s “Terms of engagement for agency workers (contract for services)” on 30 August 2022. He undertook other assignments, and his first assignment at [COMPANY] was in January 2023. The first "Candidate Assignment Confirmation” provided by the [APPELLANT] described his "Role” at Lowton West as “[NAME]”. He had various further assignments there.

15. His "Candidate Assignment Confirmation” with a start date of 6 February 2023 changed to note that his “AWR Role” was “[NAME]”. Later "Candidate Assignment Confirmations” switched back and forth between “[NAME]” and “[NAME]”. Mr [NAME] put to Ms [APPELLANT] in evidence that this change was part of the [APPELLANT]’s attempt to mislead the [NAME] and/or the claimant about his role at the [COMPANY]. Ms [APPELLANT] gave evidence, and I accept, that the change on the forms resulted from an administrative or system change in how the [APPELLANT] recorded assignments, and the inconsistency was a result of a glitch in the system or user error, but that the [APPELLANT] did not register any official change in the claimant’s role.

16. The claimant relies on a hypothetical comparator of a ‘[NAME]’. The claimant must show that he was doing work that is defined in law as that of a [NAME] in order to establish his comparator, ie [NAME]. Both parties downplayed the importance of [NAME] under regulation 5 of the [NAME] 2012. But it seems to me that this is the starting point for whether there is a breach of the [NAME], because the [NAME] are in effect the statutory definition of teaching. Under the [NAME] 2012, only a qualified [NAME] may perform the [NAME] in a [COMPANY]. By corollary then, someone who is in a role that carries out [NAME] (and who is qualified) is teaching, and distinctions between different types of supply [NAME], ie 'cover' [NAME] or 'scale' [NAME] become less clear.

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10 17. The parties agreed, and I accept, that a [NAME] need not necessarily perform all the [NAME] under regulation 5 if the [NAME] 2012 in order to meet the definition of [NAME].

Issue 1: Breach of regulation 5 [NAME]

18. In his witness statement the claimant professed ignorance of the [NAME] requirement to be paid equally to a [NAME] for the same work after 12 weeks at the time he worked for the [APPELLANT], despite having spoken to colleagues about that issue. The claimant gave evidence that during his assignment at [COMPANY], he worked as a ‘[NAME]’ and undertook specified work ([NAME]) within the meaning of regulation 5 of the Education (Specified Work) (England) Regulations 2012 ([NAME] 2012).

19. The central theme of the claimant's evidence was his contention that he was, in substance, doing the work of a [NAME], as defined in the [NAME] 2012. He accepted the description supply [NAME] but maintained that the ‘cover’ [NAME] label used in some documentation was not explained to him and did not reflect a different role in practice. He disputed that he was a 'cover’ [NAME] in any meaningful sense, saying he had not been informed of such a distinction, had not been given any definition of it, and considered that “a [NAME] is a [NAME]”.

20. On the work he carried out at [COMPANY], he said he was booked to teach and did teach across different classes to meet the [COMPANY]’s needs, including covering Planning, Preparation, and Assessment (PPA) time. He said he was not allocated non-contact time for PPA and therefore did planning during breaks and lunch times. He said that the [COMPANY] used pre-prepared schemes of work, including platforms such as [NAME] and [NAME], that still required adaptation and preparation to meet the needs of the class, which he did.

21. He said he assessed pupils as part of teaching, describing both formative assessment (checking understanding throughout lessons) and summative assessment (for example at the end of computing modules), and said he recorded assessment information and fed back to class teachers. He also said he communicated with parents, including at the start and end of the [COMPANY] day, and dealt

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11 with pupil issues in the class as they arose. He accepted that he was not directed to attend parents’ evenings, staff meetings, inset days, [COMPANY] activities or clubs, and was not required to undertake particular additional tasks (for example certain Special Education or administrative matters), but maintained that those matters were not determinative of whether he was carrying out the work of a [NAME]. Those tasks were, for any [NAME], a matter of direction by the [NAME], and he had simply not been directed to undertake them.

22. Notwithstanding the claimant’s professed ignorance on the distinctions in types of supply [NAME], I accept that he was in substance performing the same role as a [NAME]. The duties he performed were not challenged; the thrust of the [APPELLANT]’s case was that those duties were not sufficient to equal the “same job” as a [NAME] would do. But it seems to me that the claimant was doing some form of each type of [NAME] set out in regulation 5 of the [NAME] 2012. While there were some duties he was not directed to do such as parents’ evenings, there is no clear documentation that specifically requires them for a [NAME].

23.

In all the circumstances, I accept that he was substantively doing the work that a [NAME] may do in the qualifying period. I have set out the work that I accept he was doing. There was some dispute about whether the [NAME] would have [NAME] the claimant at mainscale 6 had he been [NAME] [NAME], or whether he could have been [NAME] at a lower point on the mainscale. Both parties accept that there is no legal requirement to maintain a [NAME]’s former level on the mainscale in a new position but Mr [NAME] submitted that in practice it is not done to hire a [NAME] at a lower point on the scale. In any case he would have been paid at some level on the mainscale had he been [NAME] [NAME], which it seems to me is the only necessary measure.

Issue 2: [APPELLANT]’s reliance on the statutory defence in reg 14(3) 24. I turn to the [APPELLANT]’s argument that it is entitled to rely on the statutory defence in regulation 14(3) of the [NAME].

25. Ms [APPELLANT] gave evidence about the [APPELLANT]’s processes for engaging supply teachers and applying the [NAME]. At the start of an assignment, the [NAME] and the [APPELLANT] communicate about the [NAME]’s staffing needs. In a document in the bundle

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12 titled “Terms of business with [COMPANY]” that is dated 1 February 2023 it states “To enable the [[APPELLANT]] to comply with its obligations under the Agency Workers Regulations” the [NAME] is obligated to provide information “as soon as possible prior to the commencement of each Assignment and during each assignment ...and at any time at the [[APPELLANT]’s] request” including: “written details of the basic working and employment conditions the Agency Worker would be entitled to for doing the same job if the Agency Worker had been recruited [NAME] by the [NAME] …”

26. There is no reason to believe that the applicable terms of business between the [APPELLANT] and [COMPANY] prior to 1 February 2023 were substantively different. In any event these were the applicable Terms at the end of the qualifying period on 30 April 2023.

27. Ms [APPELLANT] described the [APPELLANT]’s process for compliance with the [NAME] as including discussions at the time the assignment is initiated, ongoing communication and the completion of the [APPELLANT]’s Request for Information (RFI). The RFI is sent out at around eight weeks to prepare for the twelve-week threshold in the regulations. She said that where [NAME] do not respond, the [APPELLANT] continues to send the RFI weekly, and makes clear to [NAME] that non-response could amount to avoidance, whilst continuing the process.

28. She explained that the RFI is structured with options including ‘cover’ [NAME] and ‘scale’ [NAME] and that the selection of options can generate different follow-up fields. She referred to this as “dropdown logic”. She said that when a [COMPANY] confirms ‘scale’ [NAME], the supply [NAME]’s pay would be increased to the appropriate scale rate if that supply [NAME] had begun as a ‘cover’ [NAME]. She also said that RFIs are normally completed by [NAME] at the [COMPANY].

29. In addressing the wording used in the RFI documents, she said the descriptors used, including “specified work”, were derived from Department for Education guidance, and that the [APPELLANT] relied on that guidance, which was also quoted and hyperlinked from the RFI. She accepted that ‘cover’ [NAME] is not a nationally defined role in the same way as a qualified [NAME] that is paid on the mainscale, but

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13 maintained that ‘cover’ [NAME] is a term used in practice and that the process is aimed at identifying whether the [NAME] is carrying out the relevant duties such that they should be paid according to the mainscale or not. Her evidence was that the [COMPANY]’s response through the RFI was central and that the [APPELLANT] proceeded based on information the [COMPANY] provided.

30. Ms [NAME] said that once placed, supply teachers are under the supervision and control of the [COMPANY]; that the [APPELLANT] uses timesheets authorised by the [COMPANY]; and that the [APPELLANT] is not privy to what happens in classrooms on a day-to-day basis beyond what the [COMPANY] and [NAME] report. She said that if there is a conflict between what a [NAME] says and what the RFI indicates, the [APPELLANT] would ordinarily take it up with the [COMPANY] and seek evidence to clarify what the [NAME] is doing, and that ultimately a [NAME] is not obliged to accept or continue an assignment if dissatisfied with pay.

31. She said the [APPELLANT] had been sending supply teachers to [COMPANY] since 2012 and she had no reason to doubt the [COMPANY]’s integrity. She said that if a [COMPANY] indicated a [NAME] should be paid as per the mainscale, the [APPELLANT] would not dispute it, and that many teachers on the [APPELLANT]'s payroll are paid to scale where appropriate.

32. [COMPANY] returned the RFI regarding the claimant on 16 March 2023. The RFI was completed by the [NAME] and marked to indicate that the claimant was a ‘cover’ [NAME], which specified: “Role Definition: Deliver introduction and mark work. Sometimes plan work. Does not assess and report on the development, progress and attainment of pupils. This role will not require a rise in the current pay, and charge rate.”

33. There is further evidence in the bundle of ongoing communication between the [APPELLANT] and [COMPANY], some of which regards specific duties for the claimant. There is nothing in the [COMPANY]’s communications to the [APPELLANT] that would indicate that the RFI was inaccurate.

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14 34. That I have found that the claimant was doing substantively the same job as a [NAME] does not by itself impart knowledge of that to the [APPELLANT]. The claimant himself accepted that he did not raise any relevant issues about his duties with the [APPELLANT] at any material time. The claimant claimed in his witness statement that he sought a pay increase in June 2023 because he spoke to some supply teachers who were being, as he puts it, “paid AWR”. But this is not what he said to the [APPELLANT] at the time. In his email to the [APPELLANT] on 1 June 2023 he states that he had eight years’ teaching experience, considered himself a reliable and capable [NAME], and that, given his qualifications and market standards for similarly experienced supply teachers, his current rate was too low. He also referred to cost of living pressures and said that continuing in supply teaching at that rate was becoming financially difficult, notwithstanding that [NAME] wished him to stay from September.

35. He did not raise any complaint about doing the same job as a [NAME] until 30 January 2024, and that was in an email to [COMPANY]. The only source of information for the [APPELLANT] at the material time was [COMPANY].

36. I accept Ms [APPELLANT] evidence about the [APPELLANT]'s procedure for compliance with the [NAME], and the specific evidence of the RFI that [COMPANY] completed regarding the claimant. The claimant's assertion that [COMPANY] was confused or misled by the [APPELLANT]’s RFI, the use of the Department for Education’s non-statutory guidance or other communications is simply unsustainable. There would need to be some clear evidence that the [COMPANY]’s [NAME] spent more than a decade (2012-2024) being defrauded by the [APPELLANT] out of sheer ignorance of a commonplace commercial arrangement and applicable regulations, despite repeated reference to those regulations in the [APPELLANT]’s Terms, RFIs, etc. Further, it would require that none of the [COMPANY]'s [NAME] that had been involved in arranging supply teachers had themselves worked as supply teachers or had any experience of the distinctions. I reject this bare assertion without hesitation.

37. The [APPELLANT] had a reasonable and comprehensive process for establishing what work the claimant was doing. The [APPELLANT] made the [NAME] obligations

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15 abundantly clear to the [NAME] at every stage, beginning with the “Terms of business” cited above. The RFI states unequivocally, “Regulation 5 of the Agency Workers Regulations provides that an Agency Worker who completes a 12-week Qualifying Period in the same role for you will be entitled to receive treatment equal to what they would have received had you recruited them [NAME]. You can either provide the relevant terms and conditions the agency worker would have received had you recruited them [NAME], or point to a comparable employee you have identified in your organisation. A comparable employee is an existing employee doing the same or broadly similar work, working in the same or a different location.” (emphasis mine)

38. Mr [NAME] submitted that the RFI was misleading because it states that a ‘scale’ [NAME] must “Carry out all specified duties of a permanent [NAME]”. But the RFI is clear that this means “the same or broadly similar work” and does not overly-limit the definition of a ‘scale’ [NAME]. Even if the distinction were unclear to a layperson, I am not persuaded that a member of the [COMPANY], indeed in this case the [NAME], would fail to understand the difference. In any event, this does not detract from the [APPELLANT]’s reasonable reliance on the information provided by the [COMPANY].

39. In relation to this point, toward the end of the hearing Mr [NAME] seized on Ms [NAME] reference in evidence to the distinctions between supply [NAME] types to assert that the [APPELLANT] was introducing yet another category of “general cover [NAME]”. Ms [NAME] was doing no such thing and was simply attempting to clarify information as best she could. She clearly did not use “general cover [NAME]” as a formal category of supply [NAME].

40. Alternatively, Mr [APPELLANT] put to [NAME] that the [APPELLANT] colluded with [COMPANY] to avoid paying the claimant appropriately. But that is belied by the lack of evidence. There is no evidence at all that [COMPANY] would (or did) collude with the [APPELLANT] to deny a supply [NAME] their pay. The claimant’s case that [COMPANY] had the motive of saving money is not enough to make out this serious accusation.

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16 41. The [APPELLANT] clearly took reasonable steps to obtain relevant information from the [NAME] about the basic working and employment conditions in force at the [NAME]'s business and the relevant terms and conditions of comparable employees. There is evidence of continual communication and reminders to [COMPANY] about their obligations to provide this information and the relevance to the [NAME]. It is difficult to see what other reasonable steps the [APPELLANT] could have taken, particularly in the absence of any complaint raised by the claimant. Mr [APPELLANT] asserted that the [APPELLANT] should have educated the claimant about [NAME], but there is no requirement to do this.

42. The [APPELLANT] acted reasonably in relying on the information provided to it by [COMPANY]. It is again difficult to see what else it could have done. Mr [APPELLANT] submitted that the claimant's claimed ignorance of the [NAME] at the material time does not exempt him from its application. Of course that is true, but the issue is whether the [APPELLANT] had any information from the claimant upon which to act to obtain further information from the [NAME] that might be different than the RFI or the [NAME]’s other statements about the claimant’s role. The claimant did not raise any complaints about his duties at the time.

CONCLUSION 43. I am not greatly assisted by the first instance cases submitted. I do not criticise the parties for their submission, because there is apparently no Employment Appeal Tribunal (EAT) authority on these issues. But the cases turn on their facts and there are importance distinctions between the factual matrices of those cases and this one that, it seems to me, render it unsafe to place much direct reliance on them.

44. I have found that the claimant was doing substantively the work of a [NAME] during the qualifying period at [COMPANY], ie the “same job” as someone [NAME] recruited there. But I also find that the [APPELLANT] took reasonable steps to obtain relevant information from [COMPANY] about the basic working and employment conditions in force there, and acted reasonably in relying on the information given it by [COMPANY], and so makes out the defence under regulation 14(3) of the [NAME] regulations 2012. On that basis, the claimant's claim under the [NAME] is not well-founded and is dismissed.

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17

45. There are no agreed issue pertaining to a claim of unpaid wages, but to the extent that the claimant claims that he was not paid appropriately under section 13 of the Employment Rights Act 1996, his claim is not well-founded and is dismissed.

Employment Judge Ficklin 8 May 2026

______________________________ Employment Judge Ficklin

JUDGEMENT & REASONS SENT TO THE PARTIES ON 14 May 2026

FOR THE SECRETARY OF THE TRIBUNALS