The Fair Work Agency: A Regulator with Real Teeth?
For years, the enforcement of employment rights in the United Kingdom has almost entirely depended on individuals bringing their own claims in the Employment Tribunal and the courts. The establishment of the Fair Work Agency (FWA) is set to upend that model.
The FWA is undergoing a transitional period in 2026 and 2027 while it consolidates several workplace enforcement functions into a single regulator with a unified set of enforcement powers. The Employment Rights Act 2025 (ERA 2025) already confers powers to obtain documents or information, to enter premises, issue labour market enforcement undertakings and notices of underpayment in respect of National Minimum Wage. From 2027, however, the FWA's enforcement toolkit will expand significantly.
FWA as Litigator
While much of the focus of the FWA has been on protecting workers who do not enjoy the minimum work rights in relation to wages, holidays and hours, its powers are far broader. Section 116 of the ERA 2025, although not yet in force, will delegate powers to the FWA to bring any Employment Tribunal proceedings on behalf of workers against their employers. In practical terms, the FWA can step into the shoes of a worker who has a statutory right to bring Employment Tribunal proceedings, but it appears that the worker will not bring the proceedings themselves. The drafting of section 116 suggests that the FWA will not be able to piggyback on claims already being pursued by workers – it can only bring proceedings on the worker's behalf. Whilst the FWA's power to commence proceedings does not depend on first receiving a complaint from a worker, the government has indicated that proceedings will generally be initiated with the worker's consent and involvement – although the ERA 2025 does not require such consent.
The potential scope of proceedings is vast. While section 116 contains some carve outs (for example, proceedings cannot be commenced about a matter in which a notice of underpayment has been issued), and may be subject to further regulation, it extends in principle to any Employment Tribunal claim a worker has a right to bring – including discrimination and equal pay claims. If the FWA is successful, any decision, award or other outcome of the proceedings will be afforded to the worker.
The FWA's transitional year will be used to consider how it will effectively deploy its civil proceedings power, and we expect guidance will be issued on how the FWA will exercise the power in section 116.
Looking ahead: what this means for employers
The ability of an enforcement agency to litigate on a worker's behalf marks a shift in the enforcement landscape. Claims that might previously have fallen away because an individual lacked the resources or the appetite to see proceedings through to the Employment Tribunal could be pursued to conclusion by the FWA, and at no cost to the worker. In particular, we would expect that the FWA will focus on testing the law where it is uncertain, challenging accepted practices, especially in particular industries, cases which could impact significant numbers of workers and cases which raise hot political issues.
The reputational dimension should not be underestimated either. Proceedings brought by a regulator can carry a different weight from those brought by an individual claimant in the eyes of the public, the media and commercial counterparties.
The FWA is plainly not intended to be a paper tiger: its Enforcement Policy Statement confirms it will not hesitate to take enforcement action to address serious or persistent non-compliance. However the FWA's capacity to bring proceedings on behalf of workers – and the breadth and types of proceedings it might take on – will ultimately depend on whether it has been given a budget sufficient to match its ambitions. Only time will tell.
