Collective consultation: is it necessary to consult with agency workers?

In the context of collective consultation (redundancy or TUPE) is it necessary to also consult with agency workers?

The short answer is no, because they are not employees of the transferor or the employer carrying out the collective redundancies.

Regulation 2(1) of TUPE defines an "employee" as "any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services". Although some atypical workers may fall within this definition (and therefore be covered by a TUPE transfer), agency workers are likely to be excluded if there is no contract of service with the transferor.

With regard to TULR(C)A 1992, dealing with collective consultation on redundancies, employee is defined more simply, as "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment" (section 295(1)). Therefore there is no obligation to consult with agency workers who are employed or engaged by a temporary worker agency.

You should note that the Agency Workers Regulations 2010 added requirements into both TUPE and TULR(C)A dealing with the requirement to provide employee representatives with "suitable information" on the use of agency workers in the business. The provision of "suitable information" has been defined in the Regulations to mean information as to:

• The total number of agency workers working temporarily for and under the supervision and direction of the employer.

• The parts of the employer's undertaking in which those agency workers are working.

• The type of work those agency workers are carrying out.

This is not a requirement to consult with the agency workers, but is something else for an employer to be aware of in the context of a collective consultation exercise.