2nd consultation is published – first impressions not good

The Government has now published its long awaited response to the first consultation on the Agency Workers Directive and the draft regulations they intend to introduce. On first glance it appears that the draft Regulations are far wider than the EU Directive, giving rise to the widely expressed fear that the government is going to gold plate the legislation.  Specifically the comparison is to be the agency worker compared with another person working on the hirer site, an issue that the Directive avoided and we warned against. The entitlement is to the same pay and conditions as are normally included by the hirer in the comparable worker’s contract, regardless of whether the terms are of a binding general nature as required by the Directive. However the regulations are not proposed to be in force until 11th October 2011. The consultation seeks views on the draft regulations and closes on 11th…

Delay to Agency Workers Directive a welcome first step

Amongst a series of other proposals to delay new laws, the government has announced that it intends to delay implementation of the Agency Workers Directive in the UK until late 2011. However it is understood that the legislation will be laid before Parliament as soon as possible after conclusion of a 2nd consultation which is expected to end early in 2010. Adrian Marlowe, Chairman of the Association of Recruitment Consultancies, (ARC) commenting on the Government proposals said: “The delay in implementing the Agency Workers Directive is welcome news. We and many others had pressed for this and there is no doubt that many businesses will breathe a sigh of relief. However, it is crystal clear that the real deal is to get the terms of the legislation right, to minimise the potential damage to businesses. In its proposed “gold-plated” form it will do untold damage to the industry and to…

“Vulnerable” Workers Helpline

The government has just announced a telephone helpline for workers called the Pay and Work Rights Helpline. The helpline is set up to give all workers including agency workers easy access to information about their rights. In the accompanying announcements from both government and the REC it is referred to as a “vulnerable workers helpline” and the REC has in an article published this week welcoming it as such. As it is described as a helpline for “vulnerable” workers the implication is that all agency workers are vulnerable. This is not a view that most recruiters share. What is more, the term “vulnerable” within the context of agency workers has negative connotations for recruiters and invites more measures and legislation. Language is key and can affect policy. ARC welcomes the helpline save for the fact that the press announcement, and therefore presumably the thinking behind it, considers all workers to…

Periods of sick leave and annual leave coinciding

Will and Holly were both sales consultants employed by an agency. In April, they went on holiday together to Goa. Unfortunately, 4 days into their 2 week holiday they both caught a nasty tummy bug and were laid up for the remaining 9 days of the holiday. Upon their return they claimed they were entitled to a replacement 9 days’ additional paid holiday to compensate for the period they were ill. Are they crazy? Surely this is courting the employer’s wrath? Under a recent ECJ decision, the employer agency may be forced to give them the additional 9 days. Bizarre or what? The conclusion that Will and Holly could claim additional holiday follows a recent European Court of Justice (highest Court in Europe) decision in which a lorry driver who had become sick just before his holiday was due to start, was entitled to a replacement holiday. Since holiday is…

‘Last in first out’ redundancies

As the HR Manager may say – “unfortunately, as you’re aware, the company has to be making cut backs. As you’re the newest member of staff we have decided to make you redundant – last in, first out”.What is wrong with that? Using this approach to redundancies can often appear to be the easiest option. However this could mean losing your youngest members of staff, since a younger person could be the last person in. Double dutch?  Using length of service as the only criteria in selecting redundancies risks being regarded as discriminatory under the Employment Equality (Age) Regulations 2006. This has been held to be the case in a recent Court of Appeal decision. The best way to avoid any issues is to use a selection of criteria and to follow proper redundancy procedures. There is nothing preventing you from using length or service as one of many criteria in…

Can you supply to replace workers on strike?

With job and pay cuts leading to employee unrest, a key topic of conversation in the TUC Conference last week was that of strike action. As this threat increases, you could be contacted to supply replacements as your clients try to complete projects and keep the money coming in. Tempting though it may be to use the situation to your advantage, employment businesses are prohibited from supplying workers to replace workers on official strike action by the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (“the Regulations”). The restriction applies as much to supplying a replacement for someone who has been moved internally by the client to replace the striking worker. So beware. For those wanting to put business above reputation and wiling to risk having their collars felt, the website domain www.replaceastrikingworker.com is probably available!

Seminar – Agency Workers Directive Second Consultation – countdown to what?

With the Conservatives warning against possible cost to the economy rising to some £40bn over a 10 year period and widespread concern of government overkill (“gold plating”), the Agency Workers Directive has already proved to be the most controversial piece of proposed legislation affecting the recruitment supply industry thus far. Now that the  government’s actual plans have been published, how will the new laws affect you?  More importantly what do your clients think? Are limited company contractors inside or outside the scope? Is employment of your workers the answer, or is the supply agency model facing a radical setback? Various areas of the government’s plans remain controversial, require clarification, and a response from the industry is sought. Addressing the issues, speakers include: Adrian Marlowe, our MD and Chair of ARC (the Association of Recruitment Consultancies) Karen Wilshaw  –  Assistant Director for Atypical Work, Employment Relations Directorate, Department for Business Innovation and Skills (BIS, formerly…

Need for a forensic approach to the AWD

What the above two articles demonstrate is how easy it is for facts to be misreported and also how important it is that trade representation is accurate and protective of members interests. The press is always keen to whip up a story but it is incumbent upon those acting for the industry to take a calm and measured approach and provide the correct accurate advice and representation. Confusion must be avoided. Lawspeed has a huge background in the recruitment industry and a reputation for sound advice based on a real legal and commercial understanding as well as a successful track record in representing to government. ARC’s approach to the AWD draws on this. ARC does not welcome yesterday’s announcement. The opposite is the case.  Bringing forwards legislation early cannot benefit the industry in any respect. As we have said above, if you agree with ARC’s approach please join ARC to…

HR set to hire direct

In an article published in Personnel Today on 4th September the HR Manager of a large hirer of agency workers indicated that once the Directive is in place they intend to hire temps direct from their own internal bank of temp workers. They made it clear that this was not an off the cuff observation but a carefully thought out strategy. We have regularly warned about the potentially damaging impact of the Directive. As yet none of us know the details of how the government intends to implement the new law, but here is the clearest signal yet that supply agencies could face a serious cut in business. To alleviate the risk of the above occurring ARC, the Association of Recruitment Consultancies, has put forward a number of proposals. The key ones being that the government should only implement the Directive strictly and not gold plate, that workers earning more than…

Brown bows to union pressure at the TUC conference

Some of you may have read an article from Recruiter.co.uk sent under its email alert scheme headed “Agency workers directive implementation delayed until 2010”, which stated that Gordon Brown has announced that the Directive will be included in the “next parliamentary session”, and therefore cannot be implemented until April 2010. Kevin Greene of the REC is quoted as welcoming this development. He says it shows that government is listening to the voice of the recruitment industry. The implication is that there is to be a delay. However what Gordon Brown actually said was “when parliament returns our new legislative programme will include equal treatment for agency workers and that in the coming few months the law will be on the statute book”. The Recruiter article is therefore wide of the mark. Rather than indicating a delay it is clear that the government intends to steam ahead with the new legislation…