The government will not review the Agency Workers Regulations (AWR), set to come into force next October.

According to Edward Davey, minister for employment relations, consumer and postal affairs, the government does not want to risk the UK’s 12-week derogation period. The AWR legislation gives temporary workers equal benefits as permanent staff after 12 weeks.

In a written ministerial statement, Davey said: “The Regulations, implementing the European Agency Workers Directive, were made by the previous administration in January 2010 and are due to come into force in October 2011. The government is aware of the different points of view that have been expressed by various stakeholders about certain aspects of these regulations and has been considering the way forward.

“However, the government’s ability to make changes to address such matters is constrained by the fact that the Regulations are based to a significant degree on the agreement brokered by the previous administration between the CBI and TUC. Due to this unique legal situation, any amendments proposed to the Regulations touching upon the subject matter of the CBI and TUC agreement, which did not have the agreement of those parties, would face the risk of being set aside in the Courts in the event of a legal challenge. Were that to happen, the effect could be to call into question the very foundation for the fundamentals of the implementing legislation, crucially including the 12-week qualifying period itself. 

“The Secretary of State and I have therefore discussed this matter on a number of occasions with both the CBI and the TUC, seeking agreement on changes that we consider would have improved the implementation regime, to the potential benefit of both employers and agency workers. Unfortunately it has not been possible to find a way forward that would be acceptable to both parties.   

“This outcome is clearly disappointing. However, the government has taken the view that the absolute priority must be not to take any steps that could put at risk the 12-week qualifying period, which significantly mitigates the burdens the legislation will place on employers. The government will not therefore be proceeding with any amendment of the Regulations themselves. We will instead now use the time that is still available before the Regulations’ entry into force to develop the best possible guidance to help employers comply with their new obligations.”

Tom Hadley, head of external relations at the REC, told Recruiter: “If the government were to go away from the current regulations the unions would use it a way to revist the derogation period, which don’t forget only the UK has. The unions have made it clear that if the government tried to unpick the regulations, they would renege on the initial CBI/TUC agreement. The risk is that we would be like every other European country where the regulations apply from day one.

“It is not a great surprise but it is disappointing. The process now is to do what we can to influence the guidance document. The way the rules are interpreted can help. From what the government says, there will be a real effort to engage with the industry.”

John Cridland, CBI deputy director-general, says: “It is disappointing that the government has decided not to re-open the temporary Agency Workers Regulations.

“While we agree that preserving the 12-week qualifying period is essential, changes proposed by employers would have cut red tape without changing the overall effect of the regulations. We regret that the government hasn’t been able to reach agreement with the trade unions on this.

“The priority now has to be timely, high-quality guidance, so that employers know where they stand well before the new rules come into force.”

Andy Smith, Adecco’s head of regulatory and public affairs, adds: “Adecco has always believed that it is important that organisations that might be affected by the Regulations make use of the time available to analyse the impact of Regulations and prepare their response.

“Recent research by Adecco has revealed that 80% of HR decision makers have no idea what the consequences of non-compliance with AWR are. Now that the detail has been finalised it is time that UK companies get up to speed with this legislation to avoid future financial or legal implications.”

Ann Swain, chief executive of the Association of Professional Staffing Companies (APSCo), adds: “It was always very unlikely that amendments to the Regulations could have been made at this stage. This is why APSCo has been concentrating on the guidance notes. The devil will be in the detail of those notes.

“While it is disappointing that the government has not looked at areas like the definition of pay, at least a lot of the uncertainty surrounding the Regulations has now been removed. We can now push on to make sure the Regulations are fully understood. The drafting of the guidance was completely stalled as we awaited today’s announcement.

 “There is still no need to panic just yet. Recruiters and end users won’t be able to get their internal processes in order until the guidance notes have been published. Spending time at this stage worrying about compliance with the Regulations is premature.”