Recruiters given agency worker regulations guide

Guidance on the Agency Workers Regulations for employers and recruiters has been published – the penultimate set of guidelines before the regulations come into force from October 1st. 

Final guidance for agency workers will follow shortly, the government said, although this latest advisory should help prepare “everyone” affected by the regulations for the “forthcoming changes” to the workplace.

The document, noted for not being substantially different to guidance issued a month ago, had input from a range of “key” organisations, its authors say, notably employment businesses, end-hirers, trade unions and representative groups.

The Recruitment and Employment Confederation, representing agency staffing firms, sounded pleased with the final guidance from the government, commending its “genuine effort to take on board the concerns” of its members.

Of the regulations themselves, REC chief executive Kevin Green said they “do not fundamentally impact on the crucial flexibility that agency work provides,” although implementing them will still “create some challenges.”

Employment minister Edward Davey reflected: “We looked carefully at the possibility of amending the regulations to address employers’ concerns, but were forced to conclude that we could not do so without putting the 12 week qualifying period at risk.

“This qualification period is something that is a key flexibility that we know is vital to business. Our focus therefore has been providing the best possible guidance to help everyone affected understand these regulations.”

Under the guidance, a person who finds work through a temporary jobs agency but who is in business on their own account – “where they have a business-to-business relationship” – is likely to be outside the AWR.

However the government reiterated its message that, “Simply putting earnings through a limited company would not in itself put individuals beyond the possible scope of the regulations.”

And as experts have warned, the guidance adds that “in the event of a dispute, in order to establish if a worker is genuinely in business on their own account, the courts have devised a number of tests which examine the individual’s circumstances”.

The court would then “consider all aspects of the relationship, including what a contract might say or what it does not say, the expectations of the parties and their conduct, to establish the reality of the relationship.”

Employers and agents are advised that where the wording of a contract tries to hide the fact that “the individual is in not in business on their own account and they work under the supervision and direction of the hirer,” perhaps motivated by tax avoidance, then the regulations are likely to apply to that individual.