Acas Predictable Working Pattern requests ‘inappropriate’ for professional contractors

The Association of Professional Staffing Companies (APSCo) and its members have issued a caution that the draft Acas Code of Practice on handling requests for a predictable working pattern includes ‘inappropriate’ and unnecessary actions from the Employment Rights Act 1996.

In its response to the consultation on the Code, the trade association has warned the recommendations could create more red tape and administration for highly skilled contractors that will reduce productivity and hinder contractor recruitment.

As Tania Bowers, Global Public Policy Director at APSCo, explained, concessions need to be made for the highly skilled segment of the workforce, without impacting the necessary requirements for those in more transactional roles who would benefit from the recommendations:

“The proposals don’t account for the complex make-up of the temporary workforce supply chain. While there is a segment of the workforce that is more heavily involved in transactional jobs and may be in longer-term work with one hirer that will benefit from these proposals, the Act itself isn’t suitable for all. Agency work, by its nature, is atypical, and may be unpredictable. 

"There are sectors where agency work may be used as a means of outsourcing the legal risks of hiring low-paid workers on unpredictable hours. However, in professional sectors, contracting is often highly paid, and it is normal for assignments to have regular, predictable hours. It makes no sense, then, for a recruiter to be responsible for providing predictable hours for these workers.

“In addition, many professional temporary workers are employed by umbrella companies for the purpose of supply, due to an “Inside IR35” tax determination. It is unclear who is the agency for the purpose of the Code. They are generally highly paid, skilled professionals able to make their own decisions about how they work, who are enrolled in employment due to tax law only.

“Given that a contract of less than 12 months in duration is considered unpredictable, then most contracting assignments, however senior and highly paid will be in scope of this Act, creating red tape and administrative burden for our members and hirers. While we do understand the reasoning for allowing an agency worker to request more predictable hours with a hirer, the plans outlined are not suitable for all.

“We have called for greater clarity on numerous elements of the Code and Act to address these issues, including clearness around the definitions of various worker classifications. Without this, the Code will be tough to apply.”

APSCo warns umbrella compliance consultation is ‘flawed’

In response to the Government's consultation period, Tackling non-compliance in the umbrella company market, the Association of Professional Staffing Companies (APSCo) has warned the proposals are flawed as they fail to do address the root cause of the issue, the need for licencing of the umbrella sector.

In its submission to HM Treasury, APSCo highlighted many of the proposals aren't sufficiently wide-ranging, including:

- The proposed options aren't fit for the current marketplace, let alone anticipating future market innovations.

- They won't address the fundamental problems, there are no barriers to entry to the umbrella market, setting up a corporate entity and launching an umbrella company can be done in a mere matter of days.

- The supply chain can't have the same access to payroll data as HMRC, thus no amount of due diligence will give the supply chain access to the information that's vital to find and prevent tax avoidance. If a corrupt umbrella company sets up a shadow scheme, either with or without worker’s knowledge, then this won't be shown on any standard level of due diligence by a recruiter.

Tania Bowers, Global Public Policy Director at APSCo points out: explained: “We've proposed a broader definition to encompass umbrella companies within existing legislation which also allows for marketplace evolution, for example, such as direct engagement with end-hirers.

“While we welcome the commitment to tackle non-compliance in the umbrella sector, we believe the proposals don't go far enough to target the umbrella companies, as opposed to placing more liability and obligations on recruiters.

“There are no barriers to entry to the umbrella market, which means that setting up a corporate entity and launching an umbrella company can be done in a matter of days. 

"A licencing or registration process is required with EAS or another body, in recognition that financial wrongdoing is the largest risk to workers and the supply chain. Further, industry self-regulation should be replaced with statutory compliance codes.

“Members support enshrining due diligence in regulation as a first step as this will immediately lead to a more level playing field but don’t think it’s the most effective route to stop tax non-compliance.

“As to debt transfer and requiring recruiters to take on deemed employer obligations, members consider this will lead to SMEs being edged further out of the marketplace as end-hirers and outsourcers understandably toughen up their preferred supplier lists and contractual indemnities and potentially take the hiring process in-house.

“APSCo will continue to work with HMT, EAS and HMRC to find the right, best solutions to tackle tax non-compliance in the umbrella sector and ensure the voice of our members is heard, but urge Government to redirect their energy at regulating the sector itself, rather than requiring recruiters to do so."

https://www.apsco.org