Advising an agency in relation to a claim intimated by a pregnant agency worker

David Dixey, specialist employment lawyer for Holmes & Hills, was instructed by an agency which found temporary work placements for individuals. The Temporary Work Agency approached David for advice relating to a claim intimated by a pregnant Agency Worker via the ACAS early conciliation process.

David provides advice for employers who wish to be advised and guided on the required (legal, procedural and practical) steps to follow during negotiations with employees. These negotiations can be delicate or challenging for all parties, which highlights the requirement for a specialist employment lawyer to achieve the best outcome in these situations. The aforementioned case is unusual, in that the worker in question was assigned to their place of work, the hirer, by an agency.

Despite their experience in dealing with such matters on a day to day basis, the client approached David to seek further clarity due to the novel facts and relative legal complexity surrounding the issue.

The Agency Worker had been assigned to the hirer to perform manual work which was likely to involve manual handling such as lifting, pulling and pushing. During the assignment, the Agency Worker informed the client that she was pregnant; the client immediately informed the hirer who ultimately undertook a workplace risk assessment following which they dispensed with the Agency Worker’s services.

Pregnancy related claims

Having lost her job with the hirer, the Agency Worker initiated pregnancy related claims against the Temporary Work Agency which required an urgent response. The situation was compounded by the fact that ACAS had failed to particularise or justify the Agency Worker’s claim by reference to specific legislation or regulations.

Key points to consider

When advising on this matter, David had many points to present to and discuss with the client. These included:

1. The relevance of the actions of the hirer in dispensing with the worker’s services;
2. The extent and effectiveness of any risk assessment undertaken by the hirer when informed of the worker’s pregnancy;
3. Whether on the facts, as then known, her services had indeed been dispensed with on grounds of her pregnancy;
4. In possibly not undertaking a full and proper risk assessment whether the hirer had potentially discriminated against the worker on grounds of sex / pregnancy;
5. Whether the facts of the case invoked relevant provisions of the Agency Workers Regulations 2010 in relation to the rights of agency workers to receive certain remuneration equal to sums that would have been paid up to the end of the assignment had the assignment not ended on maternity grounds;
6. Whether such claims (if they existed) were in any event now statute barred.

The result

David provided the client with a detailed appraisal of the law relating to their obligations towards the Agency Worker within the context of the known facts. This enabled them to decide upon a strategy for resolving the dispute swiftly and cost effectively.