Changing Agency Workers Directive would have ‘opened a can of worms’, experts say

The Government was right not to attempt to amend the Agency Workers Regulations (AWR) ahead of their implementation next year as it would have “opened a can of worms” and potentially left employers worse off, according to employment experts.

Employment relations minister Edward Davey confirmed yesterday that the Government will not be proceeding with any amendment to the Regulations, admitting that a failure to reach agreement with the CBI and the TUC had prevented changes, adding that any reforms risked being overturned if the TUC went to court.

The decision comes despite Conservative Party promises to review what it described as “unfair” regulations prior to the general election.

Davey said that the Government will instead use the next 12 months to develop the “best possible” guidance to help employers comply with their obligations.

Mike Emmott, employee relations adviser at the Chartered Institute of Personnel and Development, said the Tories were looking for something specific to talk about around de-regulation and targeted the AWR.

“But they were obviously unable to find a more serviceable set of regulations and would have opened a can of worms by altering them,” he told Personnel Today. “Any attempt to undo them would have put the 12-week qualifying period at risk and potentially left employers worse off.”

David Yeandle, head of employment policy at manufacturers’ organisation EEF, agreed that any changes could have put at risk the 12-week qualifying period before equal treatment has to apply. “This would have been too serious a risk for the Government to take as retaining this key element of these regulations will help to ensure that agency working remains a key part of the UK’s flexible labour market,” he said.

Emmott said that the announcement reflects just how difficult it is to actually “slash red tape”. “Every Government comes in planning to cut red tape and every Government ‘retires hurt’,” he said. “It’s just a pipe dream these days.”

Susanna Gilmartin, partner at law firm Thomson Snell & Passmore, confirmed that the Government has had little scope to make changes.    

“The regulations are designed to give effect to the European Agency Workers Directive; failure to do this would have exposed the Government to legal challenge,” she said. “This would have potentially resulted in claims for compensation being brought by temporary workers who would have been denied the protection enshrined in the Directive.” 

John Cridland, CBI deputy director-general, described the announcement as “disappointing”.

“While we agree that preserving the 12-week qualifying period is essential, changes proposed by employers would have cut red tape without changing the overall effect of the Regulations,” he said.

“We regret that the Government hasn’t been able to reach agreement with the trade unions on this. The priority now has to be timely, high-quality guidance, so that employers know where they stand well before the new rules come into force.”

Sarah Veale, head of employment rights at the TUC, said that the decision was the right one. “An agreement was reached between the TUC and the CBI two years ago, after many hours of discussion and compromises from both sides,” she said.

“There is no point unpicking that now, after the Regulations have been enacted, and business and unions are preparing to work cooperatively with what we have agreed.”

XpertHR has more information and guidance on the Regulations.

Comments are closed.