Charles Turner: Agency worker rules – right ideas but the wrong time

EMPLOYMENT regulations are quite unlike buses. You don’t have to wait ages before a few come along at once – there is a constant procession of them, each one carrying a fresh cargo of complications for employers.

One of the latest suite of new rules – inspired by Brussels and locked down tight by our own government departments – is the Agency Worker Regulations 2010, which came into force on 1 October. They are designed to give temporary agency workers the right to some equality of treatment from day one in a particular job and a greatly extended range of rights covering pay, holidays and shift allowances after 12 weeks on the same assignment.

The fact that these wholesale and major changes were born out of a European directive is neither here nor there. In fact, the thinking behind them is underpinned by a strong moral and social case that there needs to be enhanced protection for the most vulnerable workers in our societies. That is unarguable. Every employment professional knows of the poor “permatemp”, an allegedly temporary worker who has been consecutively engaged on short contracts for years, with pay and conditions which bear no relation to those of permanent staff.

But now is not the time – as the country teeters precariously once again on the edge of recession – to handcuff businesses, especially seasonal businesses whose employment needs fluctuate wildly over the year.

The temporary labour market in the UK is huge, much bigger than in comparable economies in the EU. Labour flexibility, as a USP for attracting international investment, has been a mantra for political leaderships of every hue for decades. Business can deal with change – it is what it is designed to do. But constant change is debilitating, unsettling and unproductive. What commerce really needs if it is to be able to concentrate on fighting its way out of recession is a period of stability and clarity.

In opposition, the current Conservative leadership said the regulations would be amended to take into account the legitimate concerns of business but, after the election and contractually bound to consider its coalition partners, the government said in October last year that they would go ahead unchanged.

Employers and agencies had to wait until the end of May this year for detailed guidance, leaving barely four months before implementation. Then, to cap this cavalcade of uncertainties, it was announced that the regulations would be reviewed in 2013, creating at least one certainty – further change. The whole process is piling up huge administrative burdens for agencies and clients, most of whom already had well-established, workable and compliant practices in place to ensure parity pay and conditions.

The irony about this latest layer of legislation is that – well-intentioned though it certainly is – its likely effect will be to ensure that the most vulnerable worker will never be any better off. For thousands of people who depend on fleeting periods of employment in seasonal environments such as manufacturing, distribution, catering, hospitality and cleaning, anecdotal evidence already suggests that hirers will simply cut off supply before 12 weeks is up.

So someone who could previously have depended on, say, half a year’s work over a holiday season, will now be in danger of being released after 11 weeks. And before anyone castigates employers, they should bear in mind that their margins are often so small they can be wiped out altogether by the cost of employment compliance. Rogue agencies – and there is no point in denying that there is still bad practice out there – will choose to ignore the provisions in the regulations, calculating that employment tribunals are already overwhelmed with employment law cases.

At the very least, the government agencies involved should consider in their review that the 12-week service period is too short and a more realistic timescale before the granting of wholesale worker protection rights might more realistically be at least 26 weeks. The principles behind these regulations are good. But it would be a great shame to see laws which were designed to drive standards up actually resulting in driving them down.

• Charles Turner is group chief operating officer of Brightwork, the recruitment specialist.