No judicial review of Agency Workers Regulations

4.5.2010

The Association of Recruitment Consultancies (“ARC”) will no longer pursue its proposed action for a judicial review of parts of the Agency Workers Regulations (“Regulations”).

The ARC had argued that certain aspects of the Regulations went beyond the scope of the EU Agency Workers Directive. It has reported that substantial support from its members and other industry bodies had been received, as well as persuasive advice from Queen’s Counsel confirming that the case for a judicial review was strong. However, the proposed action was dropped, reportedly due to the constraints of the three month timescale for judicial review applications.

A statement from the chair of the ARC, Adrian Marlowe, reported:

“Sadly time has defeated us. A judicial review would have kept the issue open and obliged an incoming government to consider the regulations. Strategically the timing has always been key because it expired before the election. After nearly two years of discussion and two consultations it is fair to say that the option of further talks had currently reached the end of the line. The regulations are now law and the only guarantee that the matter would be kept alive is if there had been a judicial review.”

Amongst the ARC’s concerns was the definition of an “agency worker” under the Regulations. Doubts were raised over Regulations 3(3) and 3(4) which, although included apparently to protect true agency workers, are thought by the ARC to affect other legal persons in ways that do not appear to have been considered before.

Other commentators have suggested that the issues raised by the ARC may well be cleared up once the Government publishes its guidance on the Regulations. However, the ARC has stated that it does not accept this reasoning, since guidance will not change the law.