Can an agency be made to pay for their agency worker's criminal action?

Anne McAllister
Member - 115 posts

I would definately charge him/her as you say this is a criminal offense.
There may be a grey area here regarding whos employee he actually was at the time of the incident.
Recent cases involving employment law with regards to agency workers suggest that he is the employee of the end user (you) while he is working.
As he had been sacked ,I presume you followed statutory dismissal procedures, he was on notice at the time the incident took place and would therefore have been your employee.
However, my understanding (albeit limited) is that the agency would have been his true employer and therefore vicariuosly liable for the actions of its employees.
Or is it you (the end user) who is vicariously liable for the actions of your employee?
You may also want to look into your position regarding the damage to the managers car.
Was it parked on your private property and if so does your legal duty extend to the protection of cars parked there?
Id definately notify the agency anyway .

Don Searle
Member - 19 posts

If the agency worker did indeed scratch their name into the car, I'd say you're using the wrong agency!
Seriously, lack of detail prevents a diagnosis of the worker's position with regard to their employment status but my initial reaction would be to put pressure on the agency to stump up for repairs with the implication that you would take the case to the police if there was no co-operation. Most reputable agencies would be relieved to have the chance to repair the damage and try to salvage what's left of the relationship you have with them. This way, you will save an increase in your insurance premium and involvement in a potentially time-costly court case.
If the agency is unwilling to co-operate, then you should involve the police. Criminal damage is not confined to the public highway.

Shirley Holley
Member - 3 posts

The police have already been notified as it is company policy to do so. The terms of the agency agreement make it clear that they provide staff, and we can choose whether they remain on site or not. So I am happy that we have not breached employee rights, etc.

I will suggest to the contracts manager that the amount is deducted from the agency's next payment (and that we notify them appropriately). I think you're both right - if the agency want to continue working with us, they will stump up the cash! Thanks for your replies.

James Fairchild
Member - 210 posts

I would imagine that you can show the agency is vicariously liable for their workers' actions.

However, I imagine they will have a cleverly drafted contract (between agency and you, the end user) stating that you are responsible for all the workers' actions whilst they are are on your site (and perhaps go on to say that you have the same H&S responsibility towards them as you would your own employees).

That said of course, if they want your continued business then they will probably make a "goodwill gesture" payment if they have any sense.

Let the police charge this person with criminal damage, and you can also bring a civil claim (perhaps against both the agency and the worker) for the cost of rectifying the damage.

Finally, I hate to state the obvious, but did this vandalism occur after this worker was sacked? Do be aware of the changing case-law with respect to agency workers. In certain circumstances, they are entitled to bring unfair dismissal claims, and you've already admitted that this dismissal was summary.

Colin England
Member - 55 posts

It is stated that the matter was reported to the Police -- Ha ha ha -- in London the police are totally useless and will not even visit a house where a burglary has taken place. In a recent incident a worker stole some very valuable and irreplaceable tools(which were amrked and readily identifiable), it could only have been someone in a small group of people who stole the tools butsome few weeks later the Police have taken absolutely no action whatever.