The Association of Recruitment Consultancies (ARC) had been planning a judicial challenge to the imminent Agency Workers Regulations but, due to a lack of time to gather evidence, they have confirmed that they will not be proceeding with it.
Just last week, the Association of Professional Staffing Companies (APSCo) had actually questioned the possible judicial challenge during in discussion with Shout 99. Despite the decision to withdraw this action, ARC chairman, Adrian Marlowe, has spoken out about their reasons and he has responded to comments made on Shout 99 by APSCo.
He said to Shout 99: “It is important to note that the ARC has always said that it will only proceed with a judicial review if it can obtain sufficient support and evidence from the industry by the cut off date of 19th April. It is now apparent that while we have been delighted by the level of support it is clear that we will not be able to collect and collate the evidence within the very tight time scale. Therefore we do not consider it prudent to commence the claim. However we shall continue to press the issue. We have never suggested there should be a judicial review on employment rights.
“We strongly believe that it is legitimate for us, and indeed it should be the primary aim of any industry body, to examine issues that could negatively affect the industry. Therefore we consider it vitally important to take whatever action is appropriate if it leads to fairer and more workable legislation.
“We have every reason to believe that the Regulations concerned in this case, Rs.3(3) and (4), are likely to be damaging to recruiters and the industry as a whole. That is why we embarked on the exercise, particularly based on the opinion of Queen’s Counsel that we had received. We are entirely convinced that there was a strong case to argue, and we consider there was every justification for consideration of a judicial review in this case.
“In this context it is surely relevant that David Cameron, the leader of the Conservative Party, put his name to an early day motion to revoke the Regulations.
“I note that Kevin Barrow, partner of Osborne Clarke, dismisses the prospect of a judicial review as “an interesting academic exercise”. This is certainly not the view conveyed to us by numerous ARC members and other recruiters and industry financiers who are extremely concerned about the potential ramifications and knock on effect of regulations 3(3) and (4).
“I also note that APSCO apparently considered a judicial review and took up various points with BIS and the CBI over the last year or so. That demonstrates that a judicial review is not just “an interesting academic exercise” but is in fact a serious tool worth considering. However it is confusing for APSCO to refer to their consideration of a judicial review in the context of our current concerns because the draft regulations now in question did not exist at the time of their review in 2008 and last year.
“Furthermore I cannot agree with Ann Swain that guidance will enable anyone caught by Rs.3(3) and (4) to avoid liability. If it is possible to reduce the impact of the Regulations then steps should be taken.
“There are serious issues that must be tackled and now is not the time to roll over. In our experience civil servants respect legitimate and constructive criticism as part of the democratic process and we have pursued an open dialogue on this issue for some time with the interested parties. We have always had an adult and friendly relationship with BIS and are confident that even if this particular issue is not resolved to our satisfaction this will not harm the industry or other issues in the future.”