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With any European directive, at some point it will need to become national law, and the previous government had already held off the new law coming into force for a period of 2 years in order for agencies and end users to get used to it and start getting systems in place. However as the guidance was only published relatively recently, the fact is there are more questions than answers at the moment.
A well known fact is that the purpose of temporary workers is to provide flexible working within businesses. A temporary worker is useful in times of recession to businesses to ensure production continues but only on an ‘as and when’ basis.
Individuals choose to be flexible workers, i.e. temps; they don’t choose to be permanent employees. Whilst one can understand that their rights should not be watered down and that this legislation is to protect vulnerable workers, there are an increasingly large number of temps who are in specialist areas that get paid more than their permanent counterparts, e.g. IT, so this legislation will most probably not affect them.
Why did the previous government not consider what effect the AWR would have on businesses during consultation given the fact we were already in recession? As the Recruitment and Employment Confederation has reported, it is too late to make any changes now and the law will come into effect next month. Even with this happening, the government can still monitor the practical effects of the legislation and what the real impact will be in businesses.
What they may concentrate on is whether they can maybe amend the legislation through further regulations. That is what happened to the gangmaster legislation. The government will be cautious about changing the 12-week qualification period as this was part of extensive consultation and it will not want to be seen to be alienating the trade unions. They may rethink what falls under the definition of temporary work agency.
They also need to give some further guidance and clarification. If there are claims then tribunals need to be decisive and clear so that there are not more claims than is necessary - as there were when the statutory and dismissal procedures came into force.
Whatever the outcome of Martin Howe QC’s advice to the government, the AWR will come into force next month and we will see a raft of case law which will try and tackle and clarify some of the areas that are unclear. Therefore the reality is that if you are an agency or a company that engages temporary workers you should already be discussing what impact the regulations will have and what you need to be doing in order to be ready for this legislation.
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