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Wake-up call – Government dithering does not affect new regulations

18 November 2011
Wake-up call – Government dithering does not affect new regulations

Having just introduced agency worker regulations, the Government is now seeking to dilute them. Legal expert James Hall explains what this means

THE PROBLEM The Agency Workers Regulations 2010 were implemented this month, but it has been revealed that the Government has been seeking legal advice as to whether or not these can be diluted. So what impact does this top-level wavering have on businesses and the 1.3 million temporary workers across the country?

THE LAW The new regulations are unusual because they have come about through a combination of applying EU rules and union bargaining. Negotiated under the former Labour government and drawn up by the Department of Business Innovation and Skills, they have been criticised by many as being "gold-plated" and going over and above the minimum requirements of the EU. It is on this basis that David Cameron's strategy chief, Steve Hilton, hired a QC to explore the option of reducing their impact.

However, in one key aspect the new regulations are more lenient in the UK than in much of Europe. Whereas in other EU countries agency workers are eligible to enjoy broadly the same rights as permanent workers from day one, in the UK this will only kick-in on a financial basis after 12 weeks. This carve-out was an important part of the negotiations with the unions and one which could prove very important to employers.

Vince Cable has told colleagues that due to the negotiated nature of the new regulations, amendments to them will only be valid if there is the agreement of the Government, the CBI and TUC unions. So far, the unions have refused to agree to dilute the regulations and there is a concern that if the Government pushes this too much, the 12-week qualifying period could be overturned by the courts.

EXPERT ADVICE Overall, the recent murmurings of change and dissent among politicians have amounted to nothing and employers should press ahead with implementation as before. While the regulations may be diluted in the future, this is not something that will be happening immediately and employers should not rely on there being any changes at all.

There is partial respite for businesses, though, in that all agency workers will be subject to the 12-week qualifying period, regardless of any previous service. This means that for all workers engaged as at 1 October, equal treatment measures will not be required by law until immediately before Christmas. Therefore, any businesses which have yet to plan for these changes do still have time. However, any businesses that are found to be in breach of the new regulations at the end of this grace period will be liable for fines of up to £5,000 per worker.


â- Have a frank conversation with any agencies that you use and ensure that there is a written agreement in relation to the wages they will pay to any staff they have working at your organisation.

â- Ensure that agency workers with over 12-weeks' service are paid the same rate as the equivalent permanent workers, subject to a few exceptions including maternity or paternity pay, sick pay and redundancy pay.

â- Ensure that any relevant individual performance bonuses are open to agency workers with over 12 weeks' service, but note that this does not need to include company profit share bonuses or similar.

â- Ensure that from day one, all agency workers have the same rights of access to communal facilities, amenities and job vacancies as their equivalent permanent workers.

BEWARE! Not all agency worker absences will break the 12-week qualifying period. Any gap of less than six weeks will not count; neither will absences for statutory or contractual maternity, paternity or adoption leave or annual leave. Among other exceptions, sickness absences of up to 28 weeks will also be excluded, provided there is appropriate medical evidence. During such events, the continuity period will simply be suspended.

James Hall is a solicitor at Charles Russell

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