ARC challenges Government Agency Workers Regulations
Part of the draft regulations to bring the Agency Workers Directive into UK law may not be legal, according to inquiries carried out by the Association of Recruitment Consultancies (ARC).
The government laid draft Regulations before Parliament in January 2010, following a two part consultation which ended in December 2009. However it would appear that the draft regulations contain important new aspects that were neither raised in the consultation process nor more importantly should be introduced via secondary legislation.
The Regulations provide that recruitment businesses which have no contract at all with an agency worker, can be made liable for the rights that the agency worker will now acquire, even though such recruitment businesses are excluded from the scope of the Directive. According to legal advice including that of Queen’s Counsel’s obtained by the ARC, this is not lawful.
ARC Chairman Adrian Marlowe explains that to be an agency worker within the scope of the Directive, the worker must have a contract with a temporary work agency, which in turn must be in the business of concluding employment contracts or relationships with agency workers for assignment to a hirer. A recruitment business, such as a master vendor, does not usually enter into contracts with agency workers, has no employment relationship with the worker under UK law and therefore cannot be a temporary work agency under the Directive. Therefore such organisations should not be brought within the scope of the Regulations and held to account. The point is technical but it has considerable ramifications.
The ARC has recently raised this with the government (BIS) and has asked for the relevant Regulations 3(3) and (4) to be removed. BIS has currently declined to do so, arguing that this aspect of the regulations did not go beyond what the Directive aimed to achieve in protecting agency workers, particularly as it applied in the UK context. It has argued that to exclude certain organisations from liability would be to deny agency workers access to rights that the Directive required.
However ARC argues that the issue is an entirely legal one. If the Directive does not include certain organisations within scope, the government should not bring them into scope by redefining what an employment relationship means within national law. For it to be able to do so there must already be a national law in existence permitting that definition, and as there is no such national law the deemed relationship and liability that follows is unlawful.
A suitable response from BIS is awaited. In the meantime, ARC has written to MPs to alert them. Adrian Marlowe adds: “It is crucial to understand that this argument does not affect the rights of agency workers to equal treatment or enforceability against the actual temporary work agency or the hirer. It is unfortunate that so little time has been given to consider these regulations when we have pressed for more time, and that they have been laid before Parliament ahead of an approaching election when MPs minds are probably more on their constituents than anything else. However we are where we are and everyone can be assured that the ARC will take whatever action is required to clarify this issue as it could have serious consequences for agencies.”
He added “ The Government’s sledgehammer to crack a nut approach also highlights an element of mistrust of the recruitment industry that regrettably still exists in Government. This makes it all the more important that ARC pursues its objective of improving relationships and understanding between Government and the recruitment industry.”