Legal opinion: Can the Conservatives tamper with the Agency Workers Regulations?

What scope would a new Conservative government have to tamper with the Agency Workers Regulations 2010, due to come into force on 1 October 2011?

Background

A working person can generally be categorised as an employee, worker or an agency worker, and until recently the agency worker was the last in the queue when handing out employment rights.

Until the Agency Workers Regulations came along, that is. The Agency Workers Regulations 2010 have filtered down from the European Union and into UK law via the Temporary Agency Workers Directive, to give agency workers similar rights to those employees enjoyed.

The regulations also have penalties for agencies and hirers who fail to give agency workers their rights under this new law.

The huge burden these laws will create for UK employers can only be lightened by agreements made in consultation with “social partners”, according to the EU directive.

In the UK, these are the Confederation of British Industry (CBI) and Trade Union Congress (TUC).

In consultation with the government, TUC and CBI agreed agency workers would have to complete 12 continuous calendar weeks in the same role to qualify for equal treatment.

The EU has given member states until 5 December 2011 to put in place national laws that will comply with the provisions of the directive.

The government’s response has been seen in the Agency Workers Regulations, due to come into force on 1 October 2011.

Conservative objections

The Conservatives have objected vocally to the speed with which these regulations have progressed through parliament.

They fear the government is under increasing pressure from trade unions, prompting it to rush through the legislation after only eight weeks of consultation with businesses.

They also believe the regulations will be self defeating as they will discourage end- users from hiring agency workers, cutting off a vital method of getting back into work following the economic downturn.

This suggests that, should the Conservatives win the general election, they would aim to tweak the Agency Workers Regulations to lighten the burden placed on the employer, while encouraging agency work.

But what powers would a Conservative government have to change these regulations? They are law across Great Britain already, and the run-up to their coming into force on 1 October 2011 is designed to allow agencies and hirers to adapt their working practices.

The Conservatives say they will “reduce the burden of red tape which stifles employers – particularly small businesses.” This would be no small task. It is not a case of amending draft papers and furthering debate in parliament, but repealing the legislation (or at least sections of it) to reduce the burden on employers.

The Conservatives could not simply ignore the directive, and fail to implement some or all of the EU law, without suffering more marginalisation in Europe. Our economy, burdened as it is with national debt, could barely afford the possible reprisals.

Conservative MP Jonathan Djanogly wrote in the Conservative Blue Blog, “we need to cut out the gold plating of European directives, repatriate employment law from Brussels to the UK”. This statement hints at withdrawing, at least partially, from the EU, which seems an extreme measure in response to one set of regulations. It is doubtful even the most vociferous of Eurosceptics would advocate this action.

The only realistic option open to a new Conservative government would be to reopen consultation with the TUC and CBI, in the hope that a new agreement could be reached that reduced the burden on business.

The historical relationship between the TUC and Conservative party would not encourage businesses to hold out hope that such an agreement could be easily reached.

The TUC is greatly in favour of the new regulations and could see any proposed changes by the Conservatives as protecting unscrupulous employers at the expense of agency workers.

The CBI is likely to be far more responsive to amending the regulations to lighten the burden on businesses. So there may be some scope for a new government to come to an agreement with the social partners.

Time is short and the volatile combination of a new Conservative government and the social partners would be under considerable pressure to have a new set of regulations in force by 5 December 2011, especially if they intend to allow agencies and hirers time to adapt their current practices.

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