The current government consultation on guaranteed hours, billed under the heading of “Ending one-sided flexibility: reforms of zero hours and similar contracts”, is designed to reduce the insecurity of work and pay that some workers and agency workers face.
Whilst the intention is to be commended in so far as it may provide necessary protection for vulnerable workers, the scope, in so far as it also applies to agency workers, is worrying. It’s fair to say that the consultation invites comment on how the scope for agency workers will apply, thus potentially enabling an outcome such that those already with guaranteed hours contracts can be excluded in practice. Non vulnerable agency workers should also potentially be excluded. However, the government has stated that its preference for the qualifying reference period, after which the hirer must offer a direct ‘permanent’ contract to the agency worker, is 12 weeks of supply.
The industry must push back on this for two main reasons. First the admin for both agencies and hirers, and the cost consequence including on margin charges, will be significant. Second any cessation of an assignment prior to the end of the 12 week period will leave the hirer, and possibly the agency, exposed to risk of an employment tribunal claim that the cessation was avoidance. Such a claim would result in the hirer having to establish that the cessation was appropriate and not avoidance, much in the same way that a dismissal of an employee has to be shown not to be unfair – the tests are proposed to be similar. Whilst the first point may not initially be recognised by hirers, the second point certainly will be.
There are multiple arguments supporting the first point, too numerous for this article. The second point however is obvious. Hirers should not have to face this risk when the objective of using agency workers is usually to support and grow their businesses, not drag them down.
There comes a time when the pain caused by too much bureaucracy clearly outweighs the benefit, bearing in mind that the benefit is for the few not the majority. It’s hoped that the government will carve out non vulnerable workers. However, in any case, a reference period for agency workers of 12 weeks will not work. One of 12 months however would leave agencies and hirers with much more comfort and much less to worry about whilst supporting both apparent government objectives – growth and protection for the vulnerable.
The consultation closes on 25th August.
The Association of Recruitment Consultancies
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