Following the publication of the latest and final draft of the Agency Workers Directive earlier this month, recruiters have just over six weeks to influence the final outcome.

But is it already done and dusted or does the recruitment industry have a realistic prospect of shaping the final legislation before it finally comes into effect on 1 October 2011?

Comments made by the project manager for the AWD at the department of business, innovation and skills (BIS) at a meeting in London certainly give recruiters cause for optimism. Iain Newton told an Association of Professional Staffing Companies (APSCo) meeting that the door was still ajar. “We haven’t finalised the consultation by any means,” he said.

Tom Hadley, director of external relations at the Recruitment & Employment Confederation (REC), says he is encouraged by the government’s approach. “They have made this a genuine consultation process, so there’s still an opportunity to influence the outcome.”

However, he introduces a note of caution. “The further you get into the process, the harder it is to change things,” he says.

That said, which parts of the draft legislation can recruiters really hope to influence and where would they effectively be wasting their time?
Employment lawyers are agreed that when it comes to the basic principles enshrined in the directive, such as equal treatment of temporary workers, nothing is going to change. Similarly, the 12-week qualifying period is pretty much set in stone.

Another issue unlikely to change is legal liability should temporary workers go to an Employment Tribunal, says Stuart Neilson, a partner at law firm McGrigors.

“Liability rests primarily with the agency, although agencies have a defence if the employer doesn’t provide the agency with information they need to provide equal treatment to temporary workers - for example, by not giving them pay rates of their permanent staff.”
However, one aspect of the regulations that many believe is still up in the air is the question of the comparator employee, a concept that is fundamental when establishing equal treatment under the directive.

Fred van der Tang, managing director at Randstad, says that this is one area worth continuing to lobby on, so that recruiters have the clarity they require. “Who are you going to compare someone with? You are going to replace a receptionist with 20 years’ experience with one who has one year’s experience. It doesn’t make any sense to pay him or her the same salary,” he says.

And according to Louise Fitzgerald-Lombard, a senior associate at law firm Allen & Overy, a big question mark remains over whether and under what circumstances a worker can compare themselves with a hypothetical comparator. This is particularly relevant where there is no permanent member of staff who is working in “the same or a similar role”.

Although the draft regulations include “possible guidance” that would allow a hypothetical comparator, where an employer has pay scales or pay polices, says Fitzgerald-Lombard, in the absence of this the guidance suggests “no actual comparator can be drawn”. She adds: “This is an important point that needs to be finally determined.

Many regard the definition of pay (see Key Facts) as fairly cut and dried. However, Naomi Feinstein, a partner at law firm Lovells disagrees.

Further clarification is necessary, she says, because “it’s not certain” whether equal pay relates to pay as a whole or to each of the constituent elements - for example, basic pay and overtime.

The government has made this a genuine consultation process, so there’s still an opportunity to influence the outcome

Ann Swain, chief executive of APSCo, argues that the devil is in the detail. For example, she says she is confident that when the whole process is completed “the interests of the top end of the market will be protected”, alluding to APSCo’s ambition to exclude well paid contractors from the scope of the directive.

While the final outcome at the end of the consultation process will clearly not be everything that recruiters might hope for, given that the trade unions in particular are certain to press their case, the door is still open for recruiters.

But it is clear that those who wish to influence the outcome and help shape the industry for years to come after October 2011 will need a deep understanding of the nitty gritty. And they will also have to pick their battlegrounds carefully.

keyfacts

“The draft regulations largely reflect the proposals in the original draft consultation paper. There are no significant changes,” according to Naomi Feinstein, a partner in employment law at Lovells.

Who falls within the scope of the AWD?
Employment businesses, umbrella company workers, and personal service companies, but excluding the ‘genuinely self-employed’, limited company contractors, and managed service providers

Key facts
After 12 weeks in a given job, a temporary agency worker is entitled to equal treatment (at least the basic working and employment conditions) that would apply had that worker been recruited directly as a permanent employee - a minimum break of six weeks between assignments before an agency workers has to requalify for equal treatment

Equal treatment includes
- pay, including overtime, piecemeal rates, holiday pay and shift allowances, but excluding occupational sick pay, occupational pensions
- working time and rest periods
- access to workplace facilities, such as staff canteens

• Legal liability where workers bring cases to an Employment Tribunal rests primarily with recruitment businesses
• The consultation period is due to end on 11 December 2009
• Gordon Brown has promised that the legislation will appear on the statute books by the end of this parliament
• Implementation of thedirective is due to take place on 1 October 2011