Further questions were raised in the House last week and a letter from Ed Milliband MP to the Prime Minister over the summer bluntly enquired as to what the Government’s intentions were regarding the Agency Workers Regulations 2010.
Even so, we are no closer to knowing the answer to this important question. Prior to the General Election both the Conservative and Liberal Democrat parties voiced concerns that the UK had “gold-plated” certain policies emanating from Europe and these Regulations were amongst the front runners for review on a change of government.
There is still plenty of time, the Regulations are not due to take effect until October 2011. It also perhaps unsurprising, in the current maelstrom of political activity and threatened cut backs, that the Government continues to keep various proposals for reform under wraps – if indeed any final conclusions have been able to be reached. Mark Hammerton, partner at international law Firm, Eversheds, nonetheless believes employers expecting substantial changes to the Regulations are likely to be disappointed:
“There is no doubt that the Government is walking something of a political knife edge with these Regulations. Opportunity to challenge their legality and seek to scrap them altogether is lurking in the background but is likely to prove a political and legal step too far. Options for reform, therefore, rely on the wording of the European Directive on which the Regulations are based. In that context, time is not on the Government’s side as the Directive must be implemented by 5 December 2011. If it is not, public sector workers will be able to argue they are subject to the Directive in any event. Furthermore, the Government will risk incurring the EU enforcing legal action.
“As well as being fixed with an implementation date, at this late stage the Government is unable to alter some of the key terminology of the Regulations. For example, the obligation to offer agency workers comparable “basic working and employment conditions” and what that might broadly entail, are derived from the Directive itself and cannot now be changed. This may disappoint some employers who might have been hoping for radical change or watering down of the Regulations. However, it does not mean that scope for change is completely thwarted.
Whilst setting a framework for compliance, the Directive still allows flexibility of interpretation in many areas and therefore an opportunity for the Government to revisit certain definitions and requirements within the Regulations. The protection of workers’ rights is clearly at the heart of this but, as the Directive also recognises, protection includes the preservation of agency jobs.
For this reason and with various employers having previously suggested they might reduce reliance on agency labour in light of the Regulations, one can expect the Government to be scrutinising the definition of “pay” within the Regulations and making some adjustments here. The mechanism for accruing and ending the qualifying period for rights is also an area they will be reviewing.
“So, there are aspects of the Regulations which the Government can’t now change and others which they can, should they choose to do so. I would also suggest that there are areas which they should look to change. Certain aspects of the Regulations, such as the definition of to whom they apply and whether one looks at gross or net pay, could certainly be clearer, as could the circumstances in which continuity of engagement is ended or suspended within the qualifying period. In other respects, fairly straightforward concepts, such as the anti-avoidance provision, are overly complicated.”