Proposed judicial review of Agency Workers Regulations
Proposed judicial review of Agency Workers Regulations could harm the recruitment industry
APSCo rejected judicial review after cost-benefit analysis
APSCo working with BIS on detailed guidance for recruiters
Plans to mount a judicial challenge to the Agency Workers Regulations (AWR) could damage relations between the recruitment industry and the Department of Business Innovation and Skills (BIS), making it harder to win concessions on potentially harmful regulation in the future, warns the Association of Professional Staffing Companies (APSCo).
The Association of Recruitment Consultancies (ARC) has said that it plans to instigate a judicial review of the AWR by 19 April 2010. The Regulations are due to come into force by 2011.
The types of technical legal point which it appears that the ARC will raise in the judicial review were raised by APSCo with both BIS and the CBI during the consultation process in 2008-2009, in which APSCo was very heavily involved.
Following a detailed review last year by APSCos solicitors (leading legal experts now at international law firm Osborne Clarke) of the terms of the Directive, the definition of employment relationship and existing relevant UK law, APSCo decided it would not be a good use of members funds to instigate a judicial review. This decision was made on the following grounds:
Any application for judicial review would be relatively unlikely to succeed: a UK Court is likely to conclude that the Regulations reflect the intention of the original EU legislators and are in line with existing relevant UK law
Even if successful, the cost of a judicial review (potentially 50,000 to 100,000) would be unlikely to generate a sufficient return to justify it. Any resulting changes to the Regulations would probably not make the lives of APSCo members substantially easier given that some form of UK implementation of the Agency Workers Directive is inevitable
The best way forward is to produce good guidance notes by continuing to work collaboratively with whichever Government is in power in 2010-2011. Instigating a judicial review at this delicate point may jeopardise those negotiations and make BIS and the unions more hostile to the recruitment industry in the future
The possibility of a new Government after the General Election may provide a far more cost-effective opportunity to get the Regulations amended
Kevin Barrow, Partner at Osborne Clarke, the international law firm, comments: The potential benefits of a judicial review seemed unlikely to justify the cost, although it would have been an interesting academic exercise. In addition, a judicial review could damage the good relations which APSCo has worked so hard to build, and which have proved crucial to winning concessions so far on this and other new legislation.
Ann Swain, Chief Executive of APSCo, comments: Getting the detailed guidance right will be absolutely crucial for recruiters in terms of helping them comply with the Regulations. Given that some form of implementation of the Directive is inevitable, forcing a review could upset the apple cart and make a future Government less cooperative on this and other important regulatory matters going forward.