Agency Workers Regulations will impact on Employment Tribunals
The Agency Workers Regulations 2010 will have a considerable cost implication for the Employment Tribunal Service, says the Association of Recruitment Consultancies.
Revealing that the ARC has recently written to the Ministry of Justice with suggestions for streamlining the Regulations in order to reduce the cost impact, Adrian Marlowe explained Since January of this year we have expressed various concerns about the Regulations as they currently stand. There are all sorts of aspects that create unnecessary difficulties for parties involved in the agency worker supply chain and we are hoping to persuade the Department of BIS to look at this again.
One often overlooked impact will be on Employment Tribunals. In considering whether an agency worker has been receiving equal pay the tribunal will have to assess what terms relating to pay are ordinarily included in the hirers contracts with other staff. This task in itself will be arduous where the hirer is a large organisation with a wide range of contracts, and will necessarily involve a complex assessment procedure that will be difficult to formulate. But the regulations also allow for proceedings against any agency allegedly involved, whether or not the agency worker has a contract with that agency. This will require the tribunal to assess all the relationships, then make a judgment as to whether the equal pay rules have been broken, following the ordinarily included issue above, and then apportion blame. Accordingly tribunals will have a significantly greater task than is normally the case under a standard employment or discrimination claim.
The ARC argues that this complex situation is entirely unnecessary, does nothing to help the worker and is detrimental to all parties. The solution, says the ARC, is for the rules to be made more simple. The hirer is the only party that can possibly know the relevant pay rates that apply to workers doing the same job. The claim should therefore be against the hirer and the party who supplies the worker only. Commercial contracts can protect the hirer if another agency is to blame. In addition if the evidence required to establish pay rates is evidence of pay scales, for example, with the claimant being able to refer to a pay scale rather than simply making an unsupported allegation, the investigation required by the tribunals would be significantly reduced. Adrian concluded if the above suggestion were to be followed not only would it simplify matters for agency workers and thus reduce the number of claims but also would reduce the work and associated cost for the Employment Tribunal Service, employers and agencies alike. This would be entirely in line with stated coalition policy and we are urging the government to adopt this approach.