Agency Workers Directive could limit jobs it seeks to protect

The recent job cuts at the BMW Mini plant in Cowley have raised a number of questions about agency worker rights. The government is now preparing to launch its consultation on implementing the Agency Workers Directive (AWD) in the UK, and HR professionals can still influence the outcome of this important piece of legislation.

The events at Cowley have caused many to question how well agency workers are protected several unions are calling for more regulation. This may seem like a positive step, but additional regulation could actually have the perverse effect of limiting job opportunities for the workers that it seeks to protect.

After years of debate in Brussels, the focus is now on how the AWD and equal treatment for agency workers can work on a practical level in the UK. Will this add bureaucracy for HR and recruitment professionals? Is the overall viability of the UK’s temporary work model under threat?

In order to ensure that the proposals work on a day-to-day basis, the REC launched the Agency Work Commission to bring together recruitment professionals, employment law specialists, HR practitioners and the Chartered Institute of Personnel and Development to debate the directive’s implementation and make sure that a workable solution is reached.

So what do we know about the AWD so far? Agency workers already enjoy a variety of rights including holiday pay and statutory sick pay. They also provide a valuable resource to employers, allowing them to adjust their labour requirements quickly and in doing so, create more jobs.

It is important not to lose sight of the benefit that this type of work brings to both workers and employers alike, especially when firms such as BMW are forced to make difficult decisions about who to make redundant.

The deal agreed by the government means that equal treatment will only apply after 12 weeks of an assignment. This means that temporary workers have the right to the same rate of pay as if they had been hired directly by the employer after a 12-week period. We also know that pensions will be excluded from the definition of basic working and employment conditions.

One of the greatest concerns for HR professionals is whether the cost of using agency staff will increase based on the practicalities of establishing and administering equal treatment provisions.

These concerns can be addressed if the government takes on board one of the key recommendations of the commission that equal treatment on pay should be limited to a basic hourly salary. Equally, occupational benefits and financial participation schemes that vary from one employer to another should be excluded.

A further implication for HR professionals includes reviewing the way that temporary staffing arrangements are managed. Requests for agency workers can often come from line managers the new regulations may mean that they are no longer in a position to sign off a specific pay rate because of the need to check that this is in line with the pay of someone recruited to do the job directly.

Another concern is the uncertainty that will be created in organisations where no formal provisions governing pay exist. Most businesses do not have standardised pay scales or collective agreements which would facilitate the establishment of equal treatment, making the task much more difficult.

Where confusion occurs, the commission has proposed that the responsibility for establishing equal treatment should be split between employers and agencies and has set out recommendations that should help to avoid a surge in employment tribunals.

If these regulations are to work on a day-to-day basis though, it is essential that employers and recruiters come together as a united voice. As part of this, we are encouraging HR practitioners to contribute to the consultation in order to influence what goes into the final regulations.

There is a huge amount riding on the government getting the regulations right. The commission’s final recommendation is that these regulations should not come into force until late 2011. This should give employers time to prepare and ensure that the legislation does not have the unwanted effect of reducing job opportunities just when the UK needs them most.

Kevin Green is chief executive, Recruitment & Employment Confederation

 

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