Urgent update on the Agency Workers Regulations
The Association of Recruitment Consultancies (ARC) has decided not to pursue action for a judicial review of certain parts of the Agency Workers Regulations. This is purely because of the tight three-month timescale prescribed by law. Although ARC received persuasive advice from Queen’s Counsel that the case for a judicial review was strong, and substantial support from its members and others within the industry, in the end it was deemed impractical to assemble the case by yesterday’s deadline.
Adrian Marlowe, chair of ARC, said “Sadly time has defeated us. A judicial review would have kept the issue open and obliged an incoming government to consider the regulations. Strategically the timing has always been key because it expired before the election. After nearly two years of discussion and two consultations it is fair to say that the option of further talks had currently reached the end of the line. The regulations are now law and the only guarantee that the matter would be kept alive is if there had been a judicial review.”
ARC does not accept that the option of waiting for guidance, as has been suggested to be the way forwards, is one that will assist since it will not change the law. It is the words in the regulations that make organisations liable, and no amount of guidance will remove that.
The issue identified by ARC is serious, affecting limited company contractors, agencies, vendors and some lending organisations in ways that ARC strongly suspects had not been considered. Adrian Marlowe continued “The REC believes the regulations 3(3) and (4) are necessary to protect agency workers. We disagree from both a technical and a practical perspective. Also the idea that any judicial review of government legislation will always be counter productive, as has been suggested, is nonsense. The right to challenge is there to be used.”
ARC believes it would have been in the interests of the entire industry if REC and APSCO had supported its initiative. However neither chose to discuss their views with ARC ahead of their surprising last minute press releases and comments. ARC had published its thoughts and plans on this several weeks ago and had been in touch with their representatives and influential members to attract a broad consensus. It is for the industry to judge whether a judicial review would have been beneficial.
Adrian Marlowe concluded “The recruitment world needs to work together to find the best way of helping employers from the worst excesses of the Directive. I believe this is a prize worth fighting for. ARC has worked hard over the last 6 weeks to engage all stakeholders and BIS on Rs.3(3) and (4). It will continue to build on the evidence to demonstrate the inappropriateness and disproportionate effect of these regulations, and take the case forwards on this and other issues. There is still much to play for.”