Recruiters want agency workers' regulations checklist for ‘genuinely self-employed’

A checklist for assessing whether someone is “genuinely self-employed” - the main type of worker intended to be outside of the Agency Workers’ Regulations, should be drawn up for recruitment agencies to use.

The Recruitment and Employment Confederation said such a checklist could be “key” for its members, who include IT agencies, as, under the AWR, recruiters will have to assess if the worker falls within the regulations.

Overall, REC said there are still a number of questions recruiters have, not only concerning who but also relating to what is or isn’t caught by the regulations, such as the position of subsidised meals.

Speaking on Friday, the staffing group was responding to freshly issued draft guidance on the AWR, published by the business department (BIS) to help recruiters and employers understand the rules in time for their introduction in October.

The REC said: “Some of the main areas of uncertainty and concern for recruiters - such as the tracking of the 12 week qualifying period, the definition of pay and the mechanics of demonstrating equal treatment - have been covered.” 

Over the next two weeks, the government will consult with recruiters, employers and other affected parties to enable further comment on the published draft, which will form the basis for the final guidance on the AWR.

This is necessary because, currently, the regulations “still need tidying up” while the published guidance is a “work in progress,” the Association of Recruitment Consultancies, another agency staffing body, said.

Still, recruiters and employers will need to work closely with each other “to assess the potential impact” of the AWR without leaving it too late, according to law firm Furley Page.

“End users and agencies will [also] need to… identify means by which to mitigate any negative consequences,” the firm advised. “Inaction at this stage may lead to problems in the future”.

However the ARC’s Adrian Marlowe, who is also the managing director at recruitment legal specialist Lawspeed, cautioned against relying on the draft guidance as it stands.

“Although it will of course give a good indication of BIS's thinking on points covered, the guidance may still change as BIS takes into account comments made over the next two weeks”, he said.

“Also, and in any event, the golden rule is that the law itself is what applies, and so if the draft does not replicate the strict legal position it is the legal position that rules supreme.”