This snapshot, taken on 14/02/2006, shows web content selected for preservation by The National Archives. External links, forms and search boxes may not work in archived websites.
EMPLOYMENT AGENCY STANDARDS INSPECTORATE
Summary Guidance on the Employment Agencies Legislation
and
Our
Service Standards
Contents Page
Those covered by the Employment Agencies Act
1973 3
Employment agencies 3
Employment businesses 4
Those excluded from the scope of the 1973 Act 4
Fees 4
Standards of Conduct 5
Code for Enforcement Agencies 5
Employment Agency Standards Inspectorate
Service Standards 6
Infringement of the legislation 7
Prosecutions and Prohibition Orders 7
Conduct of Employment Agencies and Employment
Business Regulations 2003 -
Detailed Guide 8
Appendix – other legal requirements 26
Other useful contacts 28
Employment Agency Standards Inspectorate 29
This booklet is
intended to provide general guidance on the legislation – the Employment
Agencies Act 1973 (the 1973 Act) and the Conduct of Employment Agencies and
Employment Businesses Regulations 2003 (the Conduct Regulations), which govern
the conduct of the private recruitment industry and every effort has been made
to ensure the information provided is accurate. However, it does not in any way take precedence over the actual
legislation or remove the need to obtain legal advice.
Copies of the Conduct of Employment
Agencies and Employment Businesses Regulations 2003 legislation are
available from branches of The Stationery Office (TSO) or through TSO’s
Accredited Agents (see Yellow Pages).
Copies can also be downloaded from the TSO website - (www.hmso.gov.uk). A more More detailed Guidance, which on the provisions of the legislation in this area can be obtained from the
DTI by ringing 0845
955 510520 7215 XXXX or
downloaded from the DTI website - (www.dti.gov.uk/er/agency/newregs.htm).
Anyone operating, or
considering operating, as an employment agency or employment business is
strongly advised to obtain copies of the legislation.(of what?) If you need additional information you
should contact the Employment Agency Standards Inspectorate (see page 29).
The Employment
Agencies Act 1973 (as amended by the Employment Protection Act 1975, the
Deregulation and Contracting Out Act 1994, the Employments Rights (Dispute Resolution) Act
1998 and the Employment Relations Act 1999) and the Conduct of Employment
Agencies and Employment Businesses Regulations 2003 set minimum standards for employment
agencies and employment businesses operating from premises in Great Britain.
All employment
agencies and employment businesses must comply with the provisions in the
legislation. These provisions are
designed to protect work-seekers and employers using the services provided by
an employment agency or employment business.
An employment tribunal
may, on application by the Secretary of State, make an order prohibiting a
person from operating an employment agency or employment business.
THOSE COVERED BY THE ACT
The 1973 Employment
Agencies Act applies to employment agencies and employment businesses, whether
they are carried on by as commercial concerns for profit or by as non-profit making
bodies. This includes those that
provide work-finding services for au pairs, apprentices, the self-employed,
incorporated work-seekers or those covered by contracts of employment.
Employment agencies
In the 1973 Act an
‘employment agency’ is defined as the business of providing services (whether
by the provisions of information or otherwise) for the purpose of finding
workers employment with employers or of supplying employers with workers for
employment by them. The Act applies to
agencies engaged in a wide range of different sectors, for example, those finding
work in the industrial and office sectors, entertainment and model agents, and
the executive selection functions of management consultants and search
agencies. In addition, those
recruitment companies that operate on-line and those that use a publication
will also be covered. Once the
work-seekers are engaged by the employer, they have no further contractual
relationship with the agency.
Work-seekers looking for permanent employment would, therefore use the
services of an employment agency.
Employment businesses
The other type of
recruitment activity covered by the legislation is the ‘employment
business’. An employment business is
engaged in supplying people, who are employed by the person carrying on the
business, to act for, and under the control of other people in any
capacity. This covers the hiring out of
workers on a temporary basis. It has
long been associated with the supply of temporary office staff, but has also
extended into many other areas, including professional and industrial occupations. However, the Act does not cover
sub-contracting work, where independent contractors undertake specific tasks
using their own staff, who act and remain under the contractor’s direction and
control.
The legislation
acknowledges that many persons operating within the private recruitment
industry may provide services as either an employment agency or employment
business, depending upon their clients’ requirements.
THOSE EXCLUDED FROM THE SCOPE
OF THE 1973 ACT
Exclusions from the
scope of the Act include the following:
Services provided by
university appointments boards and certain other educational institutions, by
local authorities, by trade unions, employers’ organisation and certain
professional bodies for their members or by charitable organisations;
Certain services
provided exclusively for ex-members of HM forces or for persons released form
prisons or other institutions;,
Publishing a newspaper
or other publication, unless it is published wholly or mainly for the purpose
of providing work-finding services;
Tthe display of advertisements on
premises that are not otherwise used for work-finding purposes;
The provisions of a
programme service (within the meaning of the Broadcasting Act 1990);
Full details of those
excluded from the legislation are set out in section 13 (4) & (7) of the
1973 Act.
FEES
Under the provisions
of section 6(1) of the Employment Agencies Act 1973, employment agencies and
employment businesses are prohibited from charging fees to workers for finding
or seeking to find them jobs. The only two exceptions to this provision are:
is (i) the finding of jobs
for performers and certain other workers in the entertainment sector,
photographic or fashion models and professional sports persons. This exception is limited to the occupations
listed in Schedule 3 of the Conduct Regulations 2003; and
(ii)
aAn agency is able
to charge a fee to work-seekers who are companies. However, if a work-seeker and the person supplied
by the work-seeker to carry out the work have agreed that the Regulations
should not apply to them, the agency may not make a charge for providing
work-finding services. (Vic, how about our argument that the provisions of
reg 26(7) are freestanding?)
NOTE: The legislation does not
regulate the size of the fees charged to employers or workers by employment
agencies, the charges employment businesses make to employers, or to the rates
paid by employment businesses to workers employed by them. However, Regulation 10 of the Conduct
Regulations (see page 8) places certain restrictions on the charging of fees
that an employment business can charge a hirer who employs a temporary worker
direct, uses a different employment business to supply that worker, or
introduces that worker to be employed by another person.
STANDARDS OF CONDUCT
The Secretary of State
has made the Conduct of Employment Agencies and Employment Businesses
Regulations 2003 (SI 2003 No. 3319) under section 5 of the 1973 Act to regulate
the operation of employment agencies and employment businesses. These Regulations set the standards that the
private recruitment industry must meet.
Detailed guidance on these Regulations is contained in pages 8-25 of
this Guidance.
CODE FOR ENFORCEMENT AGENCIES
The explanation of the
legislation in this guidance and the information in the following sections
comprise the Employment Agency Standards (EAS) Inspectorate’s Code for
Enforcement Agencies.
The enforcement
functions under the Act are carried out by visiting inspectors. The 1973 Act enables the inspectors to enter
premises which they have reason to believe are used for the purposes of an
employment agency or employment business.
They have powers to inspect those premises and any records or documents
kept in accordance with the Act or regulations.
They may also require
the production of such information as they may reasonably need to ascertain
whether the Act and regulations are being complied with or to enable the
Secretary of State to exercise his functions under the Act. All EAS inspectors carry official means of
identification.
Our enforcement policy
includes investigating, as a priority, any complaint about the conduct of an
employment agency or employment business.
Unless the person making the complaint states otherwise, we treat any complaint
in confidence and will not inform the agency/employment business of the identity of the
person making the complaint. Our
inspectors also follow up other information about possible misconduct and
undertake random checks of employment agencies and employment businesses.
If our inspectors find
evidence of breaches of the 1973 Act or Conduct regulationsRegulations, the next
steps will depend upon the circumstances of the case. If the infringements are minor, or where an agency/employment
business is found for the first time to be in breach of the legislation, the
usual approach is for inspectors to explain the position, to require the
agency/employment business to change its arrangements to put right the
infraction and to warn it against further breaches in the future. However, in more serious cases, this
explanation will also be provided in writing.
That explanation will be in terms of obligatory requirements because the
specific nature of the legislation leaves no room for recommending actions
which are not mandatory.
In the case of an
agency/employment business which is found to have breached the legislation
previously, or which has caused serious harm to those using its services
through disregard for the protective provisions, the Inspectorate may take the
option of prosecution in a magistrate’s court or an application for a
prohibition order.
If an
agency/employment business wished to question any explanation given by an
inspector or to make representations about the application of the law, we will
take note of the points raised, seek legal advice if necessary and advise
appropriately. Such questions or
representations should be sent to:
Operations Manager,
Employment Agency Standards Inspectorate
Department of Trade and Industry
3134, 1 Victoria Street
London
SW1H 0ET
EMPLOYMENT AGENCY STANDARDS
INSPECTORATE - OUR SERVICE STANDARDS
Complaints about employment agencies and
employment businesses
The EAS Iinspectorate will
investigate, as a matter of priority, complaints about the conduct of an
agency/employment business which fall within the scope of the legislation. If you wish to make such a complaint, you
should contact the EAS Inspectorate either in writing, by telephone, fax or
email. (See page 29 for contact
addresses, telephone and fax numbers).
Should you require it, we will supply a form to assist you in making
your complaint.
We will give you a
written explanation of the result of the investigation. If we cannot complete the investigation
within 6 weeks, we will keep you informed of what is happening.
Our service to our customers
You can expect the
staff of the EAS to provide a helpful, courteous and efficient service. Our staff will identify themselves by
name. We welcome feedback on any part
of the service we provide.
If something has gone
wrong with the way you have been treated or the way your complaint about a
particular agency/employment business has been dealt with, please write to the
Operations Manager, Employment Agency Standards Inspectorate at the address given above.
If it is found that we
owe you an apology because of any shortcomings in the service we have provided,
we will give one. We will also explain
what went wrong and what we will do to put it right.
You may also write at
any time to a Member of Parliament, who may decide to refer your complaint to
the Parliamentary Commissioner for Administration (the Ombudsman).
Consultation
We will undertake
consultations with appropriate bodies, including the private recruitment
industry’s representative bodies, individual agencies, trade unions and other
interested parties, to discuss how best to deal with compliance failures and
other matters of mutual concern.
Advice and Guidance
Advice on the
application of the legislation regulating employment agencies and employment
businesses is available from the EAS Helpline (0845 955 5105).
Copies of this booklet
and the comprehensive Guidance on the Conduct of Employment Agencies and
Employment Businesses Regulations 2003 can be downloaded from the EAS website (www.dti.gov.uk/er/agency). Copies of the Conduct Regulations can be
obtained from local branches of The Stationery Office or can be downloaded from
the website: www.hmso.gov.uk.
INFRINGEMENT OF THE ACT AND
CONDUCT REGULATIONS
PROSECUTIONS
Any person who:
contravenes the prohibition on charging fees to workers;
contravenes or fails to comply with any of the Regulations made to
secure the proper conduct of employment agencies and employment businesses;
makes, causes to be made, or knowingly allows false entries to be made
in any record or document that has to be kept under the Employment Agencies Act
1973 or the Conduct of Employment Agencies and Employment Businesses
Regulations 2003; or
fails without reasonable excuse to comply with a prohibition order;
will be guilty of an
offence and liable on summary conviction to a fine not exceeding £5,000 for
each offence.
In addition, any
person who obstructs an officer in carrying out any enforcement functions will
be guilty of an offence and liable on summary conviction to a fine not
exceeding £1,000. (Check)
PROHIBITION ORDERS
An employment tribunal
may, on application by the Secretary of State, make an order prohibiting a
person (including a company) from carrying on, or being concerned with the
carrying on of, an employment agency or employment business for up to 10 years
on the grounds that the person concerned is unsuitable because of misconduct or
any other sufficient reason.
A prohibition order may:
prohibit a person from running an employment agency or employment
business , or any description of employment agency or employment business
specified in the order; or
impose certain conditions under which a person may be allowed to run an
employment agency or employment business.
THE CONDUCT OF
EMPLOYMENT AGENCIES AND EMPLOYMENT BUSINESSES – Detailed Guide
Obligations on Employment
Agencies and Employment Businesses and Rights of Work-seekersSeekers
Additional services - regulation 5
An agency/employment
business cannot require the work-seeker to use any other service it may
provide, such as training or photography, for which it can make a charge, or
hiring or buying goods, as a condition for providing work-finding services to
that work-seeker.
Restriction on detrimental action – regulation
6
A contract between an
agency/employment business and a work-seeker cannot penalise the worker for
terminating or giving notice to terminate that contract. Nor can the work-seeker be required to
disclose the identity of a future employer.
However, this provision does not cover the loss of any benefits the
worker would have received if the contract had not been terminated, the
requirement to give reasonable notice and the recovery of losses arising from
that termination. These provisions do
not cover a worker employed under a contract of service or apprenticeship.
Restriction on providing workers in an official
industrial dispute – regulation 7
An employment business
must not supply a worker to carry out the duties of a worker involved in an official
industrial dispute or to
perform the duties of those
of any other worker employed by the hirer who has replaced the worker on
strike. However, this provision will
not apply if the employment business was unaware that the hirer’s worker was
involved in the dispute.
Restriction on paying workers’ remuneration –
regulation 8
Unless an agency is
allowed to charge the work-seeker a fee in accordance with regulation 26 and complies
with the provisions of regulation 25 and Schedule 2 to the Regulations, it cannot pay the worker
either directly, or through a person to whom the agency is connected, the wages
earned from the employment found by the agency.
Restriction on agencies/employment businesses
acting on a different basis - regulation 9
When an agency/employment
business is introducing or supplying a work-seeker to a hirer, it cannot act as
an agency to the work-seeker and an employment business to the hirer, or vice
versa. They must act on
the same basis to both parties.
Restriction charging fees to hirers –
regulation 10
For a term in a
contract between an employment business and a hirer, which entitles the
employment business to charge a transfer fee if the temporary worker is either directly employed by the
hirer or supplied to the hirer by through another employment business, to be
enforceable certain conditions must apply.
The contract must provide that, instead of a
transfer fee, the hirer can give notice to engage that temporary worker for a specified specified
hire period
of extended hire.
During this specified hire period of extended hire iIf
there has been no supply, the terms set out in the contract will apply,
otherwise the terms will be no less favourable to the hirer than those which
applied before the notice was received by the employment business.
The transfer fee term
will also be unenforceable where the employment business does not then supply the worker to
the hirer for the specified extended period, unless the employment
business is not at fault.
Relevant period
There is also a limit
on the time during which certain terms in a contract can be enforced. These terms apply to work-seekers taking up
employment with the hirer, or with any person to whom the hirer has introduced
them; or working for the hirer having been supplied by a different employment
business. These are often referred to
as “temp-to-perm”, “temp-to-third party”, or “temp-to-temp” transfers
respectively.
Any such term is
unenforceable by the employment business where the worker begins that
employment or is supplied by another employment business after the end of the
relevant period. The “relevant period”
is whichever of the following periods ends later:
(i)
8 weeks starting on from the day after the
day on which the worker last worked for the hirer having been supplied by the
employment business; or
(ii)
14 weeks
beginning on from the first day on which the worker worked
for the hirer having been supplied by the employment business.
The relevant period to
apply will, therefore, be determined by the length of the hire period.
Example 1: The hire begins on 2 August 2004, ends on 6 August 2004, and lasted
for 1 week;
8 weeks after the end of the hire period is 1 October 2004,
14 weeks from the first day of work is 8 November 2004.
The relevant period therefore ends on the later date – 8 November 2004.
Example 2: The hire begins on 2 August 2004, ends on 6 September 2004, and lasted
for 5 weeks + 3 days;
8 weeks from the end of the hire period is 4 November 2004,
14 weeks from the first day of work is 8 November 2004.
The relevant period therefore ends on the later date – 8 November 2004.
Example 3: The hire begins on 2 August 2004, ends on 13 September 2004, and lasted
for 6 weeks + 1 day;
8 weeks from the end of the hire period is 9 November 2004,
14 weeks from the first day of work is 8 November 2004.
The relevant period therefore ends on the later date – 9 November 2004.
If the hire period
lasts for more than 6 weeks, the relevant period will end 8 weeks after the
last day of the hire.
When determining the
first day on which the worker was supplied to the hirer by the employment
business, any such spell of employment, which occurred prior to a period of 42
days during which that work-seeker did not work for that hirer having been
supplied by that employment business, will not be included.
Entering into a contract on behalf of a client
– regulation 11
An employment business
cannot enter into a contract with a hirer on behalf of a work-seeker or on
behalf of the hirer with the work-seeker.
Similar restrictions apply
to an agency, unless the person for whom it acts has given permission for the
agency to act on his behalf. Where the
agency acts for the work-seeker, it must be allowed by regulation 26(1) (see
page 16) to charge a fee for the work-finding services covered by the
contract. Furthermore, it must inform
its client, and the other party to the contract, of the terms of the contract
within five business days of the agency entering into that contract.
However, when agreeing
the terms of a contract an agency cannot act on behalf of both the work-seeker
and the hirer.
Withholding payment to work-seekers –
regulation 12
An employment business
cannot withhold or threaten to withhold any payment due to workers for work
they have carried out on any of the following grounds:
(i)
the hirer has not
paid the employment business for supplying the temporary worker;
(ii)
the worker has
failed to produce a document authenticated by the hirer (e.g. a
timesheet). However, the employment
business may take action to satisfy itself that the worker did, in fact, work
for the particular period;
(iii)
the worker did
not work during any period other than that to which the
payment relates;
(iv)
any matter within
the control of the employment business.
REQUIREMENTS TO
BE SATISFIED BEFORE SERVICES ARE PROVIDED
Notification of Charges and Terms of Offers
–regulation 13
When the
agency/employment business first offers to provide its services to a
work-seeker, if it is to make a charge for providing its services or goods, it
must provide the following information to the work-seeker:
(a)
whether it is
prohibited by the 1973 Act from charging for that work-finding service;
(b)
what other
services or goods may be provided, for which the agency/employment business can
charge a fee and details of that fee, including the amount and method of
calculating, the person to whom fee is payable, description of the services or
goods, and details of when a refund may be payable. The agency/employment business must also give further notice of
the introduction or variation in those fees.
If an
agency/employment business offers any gift or benefit to work-seekers to
encourage them to use its services, it must provide details of the terms under
which that gift or benefit is offered.
Requirement to obtain agreement to terms with work-seekers
– regulation 14
Before the
agency/employment business first provides work-finding services, it must agree
with the work-seeker the terms that will apply. These include:
(a)
whether the
service provided will be as an agency or employment business;
(b)
the type of work that the employment agency or
business will find or seek to find for the work-seekersought;
(c)
the content of
the terms agreed (see note on regulations 15 & 16);
Unless the work-seeker
has been given a written statement of particulars of employment in accordance
with Part 1 of the Employment Rights Act 1996, all terms of the agreement
should be recorded in a single document, if possible. (Note: if a number of documents record the terms, they should be
retained together). Copies of all those
documents must be given to the work-seeker before the work-finding services
begin.
The terms set out in
the document cannot be varied without the agreement of the work-seeker to whom
they relate. If the parties agree to
any such variation, the agency/employment business must, within five business
days of the date of that agreement, give the work-seeker a single document
setting out the terms as agreed to be altered and the date those changes will
take effect.
The agency/employment
business must not make the continued provision of any of its services,
conditional on the work-seeker agreeing to accept any such variation. Regulation 14 does not apply where the only
service provided by the agency is the inclusion of the work-seeker’s details in
a publication.
Where an agency is to provide the work-seeker with
work-finding services for which that it
is allowed to charge a fee for in
accordance with regulation 26, it additionally needs to agree the terms set
out in regulation 16. See below.
Content of terms with work-seekers: Employment
businesses – regulation 15
The terms that must to
be agreed in accordance with regulation 14 must include:
(a)
if the
work-seeker is to be employed by the employment business under a contract of
service, or for services, or an apprenticeship, and the terms and conditions to
apply;
(b)
an undertaking to pay the
work-seeker for any work carried out;
(c)
the length of notice of
termination the work-seeker is required to give and entitled to receive in
respect of the assignments;
(d)
either the
work-seeker’s pay rate, or the minimum rate to be expected;
(e)
the intervals at which
the earnings will be paid; and
(f)
details of any
entitlement to paid holidays.
Content of terms with work-seekers: Agencies –
regulation 16
For an agency which is
permitted by regulation 26(1) (see page 16) to charge the work-seeker a fee,
the terms covered by regulation 14 must include information stating:
(a)
work-finding
services to be provided;
(b)
agency’s
authority and terms (in accordance with regulation 11) to act for the work-seeker
and, if it is entitled to represent the work-seeker in negotiations with
hirers;
(c)
if the agency is
authorised to receive money on behalf of the work-seeker;
(d)
details of any
fee to be charged to the work-seeker,
including the amount or method of its calculation, the work-finding service it
relates to, the circumstances of any refund, or a statement if no refund is
payable; the method of payment of the fee;
(e)
and (f) length of
any notice of termination the work-seeker is required to give ,or entitled to
receive.
Requirement to obtain agreement to terms with
hirers – regulation 17
Apart from the
provision of information in a publication, before providing services to a
hirer, the agency/employment business and the hirer must agree the terms that
will apply, including information on:
(a)
whether the
service will be as an agency or employment business;
(b)
any fee payable
by the hirer, the amount or method of its calculation, and the circumstances of
any refund, or a statement if no refund is payable;
(c)
procedure to be
followed if the work-seeker supplied by the employment business proves
unsatisfactory;
(d)
agency’s
authority and terms (in accordance with regulation 11), if any, it has to
represent the hirer in negotiations with work-seekers.
All the terms must be
recorded in a single document. (Note: If the terms comprise more than
one item, they should be retained as a single document). If the hirer does not have a copy of the
document, or details of any variation of the terms, the agency/employment
business should provide a copy of the relevant document as soon as practicable.
REQUIREMENTS TO
BE SATISFIED IN RELATION TO THE INTRODUCTION OR SUPPLY OF A WORK-SEEKER TO A
HIRER
Information to be obtained from a hirer –
regulation 18
To be able to select a
suitable work-seeker, an agency/employment business must obtain information
from the hirer. The details required
include:
(a) hirer’s identity and nature of the business
carried out;
(b) date of commencement and duration of the work;
(c) position, type of work, location, hours of
work, and any risks to health or safety the hirer is aware of and the steps
taken to prevent them;
(d) experience, training, qualifications and any
authorisation the hirer believes are necessary, or which are required by law,
or by any professional body;
(e) any expenses payable to the work-seeker, and
where an agency is providing the services, the minimum pay rate and other
benefits offered, when payments will be made, and, if appropriate, the length
of notice which the work-seeker would be entitled to receive or required to
give.
Confirmation to be obtained about a work-seeker
– regulation 19
Before introducing or
supplying a work-seeker to a hirer, an agency/employment business must confirm:
the work-seeker’s identity; that he/she has the necessary experience,
training, qualifications and any authorisation required by the hirer, law or
any professional body to carry out the work; and
that the work-seeker is willing to
work in the position to be filled.
Steps to be taken for the protection of the
work-seeker and the hirer – regulation 20
Before introducing or
supplying a work-seeker to a hirer, the agency/employment business must have
taken all reasonable steps to ensure that both the work-seeker and hirer are
aware of any requirements, by law or a professional body, which must be
satisfied by the hirer or work-seeker for the work-seeker to carry out the
work.
In addition to any
requirement under health and safety legislation, the agency/employment business
must make all reasonable enquiries to ensure that the interests of the
work-seeker or hirer would not be harmed if the work-seeker were to carry out
the work.
If an employment
business receives information which gives it reasonable grounds to believe that
the work-seeker is unsuitable to work for the hirer, it must without
delay inform the hirer of that information and end the supply of that
work-seeker. However, if that
information indicated that the work-seeker may be unsuitable, the
employment business must without delay inform the hirer of that information and
start further enquiries to check the work-seeker’s suitability. It should inform the hirer of the further
enquiries and of any further information received. If those further enquiries give reasonable grounds for believing
that the work-seeker is unsuitable, the employment business must, without
delay, inform the hirer and end the supply.
Where aAn
agency,
which
hadhas
introduced a work-seeker to a hirer, and receives information, within 3 months
from the date of that worker’s introduction, indicating that the work-seeker is
or may be unsuitable for the position in which he/she is employed, it must
inform the hirer without delay.
“Without delay” means
on the same day, or where that is not reasonably practicable, on the next
business day.
Provision of information to work-seekers and
hirers – regulation 21
When an
agency/employment business submits a work-seeker to a hirer, it must provide
(orally or otherwise) the hirer with all information about that work-seeker it
was required to obtain by regulation 19 (see above). An employment business must include information on whether the
work-seeker will be employed under a contract of service, for services, or an
apprenticeship.
The agency/employment
business must also give (orally or otherwise) to the work-seeker, at that time,
information about the hirer it was required to obtain by regulation 18 (see
page 12). An employment business that
had not already agreed a pay rate must inform the work-seeker of the rate it
will pay him to work in that position.
If the
agency/employment business had not provided any of that information in paper
form or by electronic means at the time the work-seeker was proposed to the
hirer, the agency/employment business must do so before the end of the third
business day following the day on which the information was given to the hirer
or work-seeker.
Unless the work-seeker
or hirer requests otherwise, these provisions do not apply if the work-seeker
is to be introduced or supplied to work in the same position with that hirer
that he/she had worked in within the previous 5 business days and the only new
details concern the dates the work is to begin and end.
Additional requirements where professional
qualifications are required or where work-seekers are to work with vulnerable
persons – regulation 22
Regulations 18-21 (see
pages 12 & 13) set out the requirements that an agency or employment
business must follow when introducing a work-seeker to a hirer. Regulation 22 places further obligations
where the work-seeker is required to possess qualifications or authorisation by
law or a professional body to work in a particular job; if the position
involves working with young people, or caring for the elderly, infirm, or any
other circumstances needing care or attention.
The additional
obligations require the agency/employment business to obtain, and to offer to
the hirer: copies of the work-seeker’s relevant qualifications or
authorisations; two references from persons, not related to the work-seeker,
who have agreed that they can be disclosed to the hirer; and, where the
work-seeker is to work with vulnerable persons, the agency/employment business
has taken all reasonable steps to confirm that the work-seeker is not
unsuitable for the work. We would
expect that, when complying with this regulation, employment agencies or
employment businesses introducing or supplying work-seekers to be employed as
nannies, babysitters or other childcare workers, would normally
have undertaken a Criminal Records Bureau check for those work-seekers.
If an
agency/employment business has taken all reasonable steps to obtain two
references but been unable to do so, it can should comply with those
requirements as far as it is able, inform the hirer that it is unable to comply
fully and give details of the efforts taken to attempt to comply.
SPECIAL
SITUATIONS
Situations where more than one agency or
employment business is involved – regulation 23
Where an agency or
employment business agrees with another for the provision of work-finding
services, it must make enquiries and establish that the other is suitable to
act as an agency/ employment business.
Both must agree whether they are to act as an agency or employment
business.
If one agency (the
first agency) is permitted by regulation 26 (see page 16) to charge the
work-seeker a fee, it must confirm that the hirer has been informed that any
payment due to the work-seeker must be paid to the work-seeker or to that
agency. If both agencies agree that the
second agency may receive that payment, the second agency must pass that money
to the first agency within 10 days of receipt; and, provided the appropriate
legislation covering the agreement between the two agencies does not prevent
it, they have agreed that the work-seeker may take legal action against the
second agency, if it were to fail to pass on any money due to the
work-seeker. The agreement between the
two agencies must be recorded in paper or electronic form.
The first
agency/employment business cannot sub-contract any of its responsibilities
under the contract with a work-seeker or hirer to another agency or employment
business unless it has the prior consent of that work-seeker or hirer; the
terms to be sub-contracted are recorded in a single document, and the first
agency/employment business has given the work-seeker or hirer a copy of that
document.
Situations where work-seekers are provided with
travel or required to live away from home – regulation 24
An agency/employment
business cannot arrange for an au pair to be employed, if the au pair is
required to repay the agency/employment business the fare between the au pair’s
home and place of work out of the au pair’s earnings.
Apart from where the
work-seeker is to be employed by the hirer under a contract of employment, the
agency/employment business must not arrange for the work-seeker to take up
employment with the hirer, if the work-seeker must live away from home. However, there are certain exceptions to
this rule – where the agency/employment business has taken all reasonable steps
to ensure that suitable accommodation will be available during the employment;
the work-seeker has details of the accommodation available, including costs;
and arrangements have been made for travel to the accommodation.
In addition, where the
worker is not the employee of the hirer, or is under 18 years of age, and the
agency/employment business has arranged free transport or payment of the
worker’s fares, when the work ends, or does not start, the agency/employment
business must either arrange free travel for the worker’s return journey or pay
the return fare, or obtain an undertaking from the hirer to make those
arrangements. However, if the hirer
does not comply with his undertaking, the agency/employment business must
either arrange free travel for the return journey or pay the fare.
Where the work-seeker
is looking for employment as an au pair or in private domestic service, the
agency/employment business must ensure that, if the work-seeker requests any
reasonable information about a particular vacancy, the information is given.
An agency/employment
business cannot introduce or supply a worker under 18 years of age, where the
job requires him/her to live away from home, unless the parent’s or guardian’s
consent has been given. However, this
provision does not apply where a licence is required for that worker to travel
abroad to perform for profit.
If the work-seeker is
to be found work, which requires him to be loaned money, either by the
agency/employment business or hirer, to pay for travel or other expenses, the
sum to be repaid cannot be greater than the amount of the original loan. The agency/employment business must provide
the work-seeker with all details it has of the terms of the loan and the
repayment.
CLIENT ACCOUNTS AND CHARGES TO
WORK-SEEKERS
Client accounts – regulation 25
An agency can only
request or receive money on behalf of a worker, who is employed in an
occupation in which a fee can be charged, where that money is earnings from
work and the agency maintains client accounts.
If an agency receives any money on behalf of a worker it is not
permitted to accept, it must pay the money to that worker, to an agency allowed
to receive the money, or to the person from whom it was received, within two
business days of receipt.
All money received by
the agency on behalf of the worker, other than cash paid to the worker within 2
business days of receipt; cheques and banker’s drafts payable to the worker
must be paid into a client account within two business days of receipt. All cheques and banker’s drafts must be sent
to the worker to whom they are payable within two business days of receipt.
When an agency makes a
payment to a worker in accordance with these regulations, it must give the
worker a statement setting out details of when the payment was received, from
whom it was received, the work to which it relates, and any fees or deductions
made by the agency. All payments made
by the agency to the worker or into a client account, apart from any deductions
required by law, must be made without deductions. However, an agency, which is allowed to charge the worker a fee,
can deduct such a sum from any money due to the worker, provided that worker’s
contract agrees that such a deduction may be made. An agency that receives money on behalf of a worker which is paid
into a client account may only be held for 10 days, or for any longer period as
requested by the worker.
If a worker requests
that a payment be made from the money held by the agency on his behalf, the
agency must make that payment within two business days of receiving the
request. Where an agency holds money on
behalf of a worker for more than 30 days from the date it was received, it
must, by the end of the thirty second day, provide the worker with a statements
setting out the amount held at the close of the thirtieth day. It must continue to provide such statements
at intervals of no more than thirty days until all the money held has been paid
to the worker. Where a cheque made
payable to the agency is received by the agency on behalf of a worker, the
periods of 10 and 30 days start with the day on which the cheque is cleared.
All invoices issued by
an agency in respect of work carried out by a worker must state that, if
payment is to be made by cheque or banker’s draft, the cheque of draft must be
made out to the agency’s client account.
An agency cannot
request or receive a hirer’s deposit, unless it would be money that the agency
was entitled to request or receive on behalf of a work-seeker, if it became payable
to the work-seeker. Any such deposit
received by the agency must be paid into a client account within two business
days of receipt. Where an agency
receives a hirer’s deposit that it is not entitled to receive, it must pay that
money to an agency allowed to receive such a payment, or to the person from
whom it was received, within two business days of receipt. Any hirer’s deposit received by the agency
is held in trust for the work-seeker until it becomes payable to him or the
hirer as provided under the terms of any contract between the work-seeker and
the hirer. Where a worker becomes
entitled under the terms of his contract with the hirer to any deposit paid to
the agency, for the provisions of these Regulations, the agency will be
regarded as having received that money on the day on which the worker became
entitled to it.
Circumstances in which fees may be charged to
work-seekers – regulation 26
The restriction on
charging fees to work-seekers does not apply to any fee charged by an agency
for providing work-finding services to a work-seeker employed in occupations
within entertainment, modelling etc sectors, listed in Schedule 3 of the
Conduct Regulations. Such a fee can
only be charged from the worker’s earnings in any employment which the agency
has found for him. The restriction on
charging fees will also not apply to a charge for work-finding services made by
an agency to a work-seeker that is a company and the employment is in an
occupation not covered by Schedule 3. However, the agency cannot make a charge to a worker where it, or
any person connected with it, charges a fee to the hirer for supplying or
introducing that worker to him. In
addition, where the agency is connected to the hirer, such a charge can only be
made if, before providing the service to which the charge is to be made, the
agency informs the work-seeker of that connection.
Under certain
circumstances an agency is permitted to charge a fee to a work-seeker for
including information about him in a publication, which is designed either to
find the work-seeker work in any of the occupations listed in Schedule 3 or to
provide hirers with information about work-seekers looking for work in those
occupations.
Such a fee may only be
charged where the publication is the only work-finding service provided by the
agency, or the fee charged to the work-seeker is no more that an estimate of
the cost of producing and circulating the publication arising from the
inclusion of that work-seeker’s details in the publication. In addition to other requirements in these
Regulations which may apply, the agency must make available to the work-seeker
a copy of a current edition of that publication, before it enters into a
contract with the work-seeker.
There are no restrictions on charging fees to work-seekers for the purchase
of or subscription to a publication which contains information about employers
provided that this is the only work-finding service the agency offers to the
work-seeker and a copy of the current edition has been made available to the
work-seeker before he has purchased or subscribed to it. However, if the publication is in electronic
form, the work-seeker must be given access to a current edition.
MISCELLANEOUS
Advertisements – regulation 27
Every advertisement made by an agency/employment business must include the
agency /employment business’s full name, either audibly or in writing
(depending on the media used) and stating if it is acting as an agency or an
employment business. The
agency/employment business must not place an advertisement, which includes
details of positions unless it has information about all the specific positions
included in the advertisement; and has been given authority by the hirer
concerned to find work-seekers for the position advertised. Where the advertisement gives rates of pay,
it must also state the nature of the work, its location and the minimum
experience, training or qualifications which the work-seeker needs to have.
Confidentiality –
regulation 28
An agency/employment business must not disclose any information about a
work-seeker, including to his current employer, without his prior consent unless
it is a) to provide work-finding services for that work-seeker; b) for the
purposes of any legal proceedings (including arbitration); or c) in the case of
a work-seeker, who is a member of a professional body, the provision of
information to that professional body.
The only exceptions to this would be where the agency/employment
business is allowed under the provisions of the Employment Agencies Act, these
Regulations or any other piece of legislation dealing with the disclosure of
information, such as the Data Protection Act 1998, to disclose confidential
information about a work-seeker.
Records – regulation 29
An agency/employment business must keep sufficient records to show that it
has complied with all the provisions of the Employment Agencies Act 1973 and
the Conduct Regulations 2003. This
includes details relating to applications received from work-seekers, hirers,
and its dealings with other agencies and employment businesses. These records must be kept for at least one
year after their creation and, in the case of the details in respect of
applications from work-seekers or hirers; they must be retained for at least
one year after the date that the agency/employment business last provided it
services to the applicant. However, an
agency/employment business is not required to keep details of a work-seeker or
hirer if it takes no action in respect of that application.
The agency/employment business may either keep those records at the
premises where it trades, or elsewhere.
If not retained on its premises, they must be readily accessible by the
agency/employment business and can be delivered to the trading premises to
which they relate within two business days of being requested. The records can be kept in electronic form
provided they can be reproduced in a legible form.
These record-keeping requirements do not apply to the retention of client
account records for modelling and entertainment agencies, which must be kept
for a minimum of six years. The
requirements for those records are set out in paragraph 12 of Schedule 2 of the
Conduct Regulations (see page 24).
Civil liability – regulation 30
If an employment agency or employment business fails to comply with any of
the provisions of either the 1973 Act or the Conduct Regulations, which causes
damage or loss to another person, that person can sue the agency or employment
business for damages arising from a breach of the legislation. The term “damage” in this regulation
includes the death of, or injury to, any person (including any disease and any
impairment of that person’s physical or mental condition).
Effect of
prohibited or unenforceable term and recoverability of monies – regulation 31
Where an employment agency’s or employment business’ contracts contain any
term which is either prohibited or made unenforceable by the Conduct
Regulations 2003, the remainder of the contract may continue to apply to the
parties concerned, if the contract is capable of continuing in existence
without that term. If a hirer has paid
any money to an employment business under a contractual term, which is
unenforceable under regulation 10 (restriction on charges to hirers), the hirer
is entitled to recover that money.
Application
of these Regulations to work-seekers which are incorporated – regulation 32
With effect from 6 July 2004 these Regulations apply to worker-seekers who are
incorporated. Therefore, any reference to a work-seeker in
the Regulations also includes a work-seeker that is a limited company. Consequently, certain regulations are
modified where the work-seeker is a limited company. These require that where there is a mention ofreference to the
“work-seeker” in the regulations, it includes a reference to a
limited company contractor and, where appropriate, the person who is, or would
be, supplied by the work-seeker to carry out the work.
However, the Regulations provide that limited companies, and those persons
whose services they supply, can agree not to be covered. If they do exercise the choice not to be
covered, then both the limited company, and the worker to be supplied, must
give notice to the agency or employment business of the decision, before they
are either introduced or supplied to a hirer.
A person supplied to carry out the work by the work-seeker, which is a
company, can withdraw that notice to the employment business or agency by
giving notice of its withdrawal.
However, the notice of the withdrawal will not be effective until after
the limited company contractor/person working through the limited company
contractor stops working in that position.
The opt out provisions do not apply to a person, who is a limited company
contractor, or is supplied by the limited company contractor to attend or care
for any person either under 18 years of age or, by virtue of age, infirmity or
any other circumstances, is in need of care and attention. An agency/employment
business may not make the provision of its work-finding services conditional
upon either a limited company, or the worker to be supplied, giving notice to
opt out of these Regulations.
This particular regulation came into force on the 6th of July 2004.
Electronic
and other communications – regulation 33
Unless expressly stated in the Regulations, any requirement to notify a
person of any matter, to give or send a document, to provide a person (hirer or
work-seeker) with information or make enquiries and receive responses, can be
discharged in writing, either on paper or by electronic means.
SCHEDULE 1
TRANSITIONAL AND SAVING PROVISIONS
The Transitional and Saving Provisions describe how the Regulations applied
to a contract in existence before these Regulations came into force.
Interpretation
“Existing contract” is one
entered into between an agency/employment business and either a work-seeker or
hirer before the date on which these Regulations came into force, i.e. 6 April
2004 for
all contracts and 6 July 2004 for those entered into with work-seekers that are
companies.
“Ongoing
supply” is the supply of a
temporary worker to a hirer by an employment business, which was in progress at
the date these Regulations came into force, and continued after that date. “Transitional period” is the period of 3 months from 6 April 2004 to
5 July 2004. However, there There was no transitional
period for regulations 26(7) and 32, which took effect came on 6 July
2004.
Application
to existing contracts
The Regulations apply to all existing contracts from the date the Regulations came into force, apart from the following, which did not apply to existing contracts during the transitional period:
Regulation 5
- Restriction on requiring work-seekers to use additional services;
Regulation 6(1) - Restriction on detrimental action relating to
work-seekers working elsewhere;
Regulation 10 - Restriction on charges to hirers;
Regulation 12 - Prohibition on employment
businesses withholding payment to work seekers on certain grounds;
Regulation 26 -
Circumstances in which fees may be charged to work-seekers;
Regulation 28(2) - Prohibition on disclosure of information to current
employer.
Provisions for regulation 10
After the end of the transitional period (5 July 2004) regulation 10 did not apply to any right which had accrued on or before that date under the terms of an existing contract, which is described in that regulation.
From that
date6 July
2004, under certain circumstances, an existing contract between an
employment business and a hirer, which does not provide for an extension of the
hire period as required under regulation 10, may be regarded as having
satisfied that requirement. That
requirement would be satisfied where the employment business informed the hirer
that, instead of paying a transfer fee, the hirer could employ the work-seeker
for a specified hire period. The hirer
must have been notified of this choice after the Regulations took effect but
before the worker began employment directly with the hirer, or was supplied
through another employment business.
Savings in respect of existing contracts
As some provisions in
the Regulations did not apply during the transitional period, the following
provisions of the Conduct of Employment Agencies and Employment Businesses
Regulations 1976 remained in force until 6 July 2004 in respect of existing
contracts:
Regulation 2(2) –
non-disclosure of information;
Regulation 4(5) –
provision of services to a worker conditional upon using other services
provided by the agent;
Regulation 9(9) -
prohibition on detrimental treatment for termination of contract by worker);
and
Regulation 9(10) –
prohibition on making remuneration conditional on receipt of payment from the
hirer).
In
addition, the Employment Agencies Act 1973 (Charging Fees to Workers)
Regulations 1976 remained in force in respect of any existing contract during
the transitional period.
Ongoing supplies and first occasions of supply
The following
regulations only apploed to the supply of workers by an employment business
which began after the Regulations came into force:
Regulation 7 - Restriction on providing work-seekers in industrial disputes;
Regulation 18 - Information to be obtained from a
hirer;
Regulation 19 - Confirmation to be obtained about
a work-seeker
Regulation 20 - Steps
to be taken for the protection of the work-seeker and the hirer.
Regulation 22 - Additional requirements in respect
of professional qualifications or workers working with vulnerable persons.
Certain of the 1976
Conduct Regulations remained in force after 6 April 2004 for an “ongoing
supply”. These were: regulation 9(6)(b)
- the requirement to give a worker a written statement incorporating any
changes to terms and conditions of employment without delay; and regulation
9(11) - the prohibition on supplying
workers to replace those in industrial disputes.
In addition, where the
terms of an existing contract with a hirer were varied, the agency or
employment business, before they provided services to the hirer after the
variation had been agreed, must comply with regulation 17 - the requirements to obtain agreement to such
terms with the hirer.
Restriction on paying work-seekers’ remuneration and client
accounts
Regulation
8 - the restriction on agencies paying workers who have been introduced or
supplied to a client did not apply during the transitional period.
Regulation 25 did not apply during the transitional period, if an agency was not required to
maintain a client account before the Regulations came into force. In addition, regulation 7 and Schedule 2 to
the 1976 Regulations continued to apply during the transitional period.
Where these special provisions for regulation 25 did not have effect, regulation 25 and Schedule 2 applied to
all “relevant money” held by an agency from the date these Regulations came into
force. If regulation 25 or Schedule 2
required the agency to take action with the relevant money it held within a
specified period, and the event which gave rise to that requirement occurred
before the Regulations came into force, that event should have been regarded as
having taken place on the date these Regulations came into force.
Regulation
25 and Schedule 2 applied after the end of the transitional period in
respect of relevant money held by an agency, for which it received no written
request from a work-seeker to maintain a client account; and where there is a
requirement in regulation 25 or Schedule 2 for the agency to take action within
a certain period, and the event which required that action to be taken occurred
before the end of the transitional period; that event is regarded as having
taken place on the first day after the end of the transitional period.
“Relevant
money” is money held by an agency immediately before the date these Regulations
came into force or immediately before the day the transitional period ended and
in respect of which regulation 25 or Schedule 2 required an agency to take
action.
Miscellaneous
Savings
The following provisions of the Conduct of Employment Agencies and
Employment Businesses Regulations 1976 remained in force if the event requiring
action to be taken under the 1976 Regulations occurred before the Conduct
Regulations 2003 came into force:
Regulations 8 & 12 - record keeping;
Regulations 3(4), 6(1), 6(3), 6(5)(b), 7(3), 9(6)(c), 10(4), 11(1),
11(5)(b) - the requirement to keep
copies of advertisements, written statements and documents;
Regulation 5(4) - the duty to loan the return fare to
a young person; and
Regulation 11(3) – responsibility to pay a worker’s return fare if an
employment business has supplied that worker to work outside the UK and the
hirer fails to comply with an undertaking to pay the worker’s return fare.
SCHEDULE 2
CLIENT ACCOUNTS
Interpretation
Accounts, books, ledgers and records include any form of record, electronic,
mechanical or otherwise, which is used as a system of bookkeeping. If the record is electronic, it must be
possible to reproduce the information in a legible form.
“Accounting reference date” as defined in section 224 of the Companies Act
1985.
Client is any person for whom the agency acts and operates an account, which it
uses to hold that person’s money; also may a hirer from whom the agency
receives a deposit.
Client’s money is money received by the agency on behalf of a
work-seeker (including any advance against payment for work to be done by the
work-seeker, where that advance is not repayable to the hirer) and hirer’s
deposits. However, it does not include
money to which the agency is the only person entitled.
Maintenance of client accounts
An agency can have one
or as many client accounts, as it considers necessary. Every account must be in the name of the
agency and its title must include the word ‘client’ and, if the account
contains money for a single client, the name of that client.
The agency must pay
into the client account any monies of the agency needed to open or maintain it,
any money to replace that drawn from it in contravention of the provisions of
this regulation and any money that the agency is entitled to split but has not
done so.
There are restrictions
on how money can be withdrawn from a client account, when meeting the
provisions of this Schedule. For
example, that money can only be drawn from the account by a cheque or
electronic transfer in the agency’s name or by transfer to an account in a
credit institution in the name of the agency, but not to a client account. Only money permitted to be withdrawn can be
drawn on a client account. In addition,
any withdrawal can only be carried out by an authorised signatory known to the
credit institution holding that account.
An agency can, where
practicable, split the money it receives, including client’s money, but each
amount must be treated as a separate sum; or, if the agent does not split the
money, it must be paid into a client account within two business days of the
date it was received.
The only money that an
agency can pay into a client account is defined by regulation 25(4) and (14) or
by this Schedule. Money paid into the
client account, which does not meet these requirements, must be withdrawn
within two business days of the date on which the error was discovered and then
be paid to the person to whom it belongs.
An agency can only
withdraw from a client account money required to pay the client and any payment
to another person requested in writing by the client (provided that the agency
and client have previously agreed that such payment will be made). Additionally, money can be withdrawn from
the client account to reimburse the agency for money spent on the client’s
behalf at the client’s written request; for the agent’s fee or for a payment
due to the agency from the client, in respect of any advance of earnings paid
to the client by the agency.
Where the client has
agreed in writing to such a deduction, the agency should, where appropriate,
provide an invoice or other written statement.
Money can also be
withdrawn to repay the money used to open or maintain the account or if the
money has been split to pay the person entitled to it. Additionally, if the money has been wrongly
put into the account, it can be withdrawn and any money required by law to be
deducted from earnings before it is paid to the work-seeker. Such money can be withdrawn, provided that
the amount to be withdrawn does not exceed the total amount held in that
account for the client.
The transferring of
money from one client account to another can only be carried out with the
agreement of the client to whom the money belongs or where a work-seeker
becomes entitled to a hirer’s deposit paid into that account under terms of a
contract with that hirer.
Accounts and records
Every agency is
required to maintain sufficient accounts and records to show transactions
relating to any clients’ money received by the agency and any other money paid
into the client account. Additionally,
the accounts must show those transactions for each client and that money must
be distinguishable from any other monies held or paid for that client. The accounts should also show the current
balance of each client’s account in the client’s ledger or should ensure that
this can readily obtained.
All transactions must
be appropriately recorded in a client’s cash account or a client’s column of a
cash account and in a client’s ledger or a client’s column of a ledger. No other transactions may be recorded in
that account, ledger or columns. All
other transactions should be recorded separately in whatever form the agency
chooses to maintain (i.e. account, ledger or cash account column).
In addition to those
accounts, ledgers and records, every agency must keep a record, and copies, of
all invoices and statements in respect of payments made from the client’s
account. In keeping such records, the
agency must distinguish between fees and expenditure, delivered or made by the
agency to its clients.
Every agency must,
within 21 days of the end of each calendar month compare the total of the
balances shown by the clients' ledger accounts of the liabilities to the
clients, with the cash account balance as at the last day of that calendar month;
if there is any difference between these two balances, the agency must produce
a statement explaining the cause; the agency must reconcile the cash account
balances with the balance shown on statements and passbooks of all client
accounts, and money held elsewhere, and any difference between the two must be
explained; and finally, the agency should take appropriate action to rectify
any differences found.
Inspection and report
Every agency that is
required to keep accounts and records as specified in this Schedule must
arrange for them to be inspected and reported upon by an independent person,
who is a member of one of the bodies listed in section 249D(3) of the Companies
Act 1985, within ten months of the end of the accounting period,. The agency must ensure that that person’s
rights and duties are set out in the letter of engagement. Details of the terms to be included are set
out in paragraph 10(2) of this Schedule.
The agency must undertake to provide the all the necessary accounts and
supply whatever additional information may be requested by that person.
Agencies that are
required to maintain client account(s) must keep a copy of the reporting
accountant’s most recent report displayed at each of their premises so that it
can be readily seen. However, this
report does not have to include the information concerning the requirements
that the agency has not complied with.
Accounting period
If the agency has
client accounts or accounts established prior to these Regulations coming into
force, the first accountancy period will begin the day after the Regulations
came into force. It will end on a day
not more than twelve months after that date, or if the agency is incorporated
under the Companies Act 1985, its accounting reference date, whichever is the
sooner. However, if the client
account(s) were created on or after the Regulations came into force, the
accounting period will begin on the day the first account was created. It will end on a day not more than twelve
months after that date, or if the agency is incorporated under the Companies
Act 1985, the agency's accounting reference date, whichever is the sooner.
All subsequent
accounting periods will begin on the day immediately after the end of the last
period and end with a date no less than six months and not more than twelve
months after that date. In the event of
an agency closing its only client account on a date less than six months after
the previous accounting period, that period will end on the day the account was
closed.
Preservation of client account
records
Agencies that are
obliged to maintain client account(s) under these Regulations must keep copies
of all accounts, books, ledgers and records; copies of all invoices and
statements issued to clients and all statements printed and issued by the
credit institution, which holds the relevant client account; records falling
under the reconciliations required under this Schedule and reports to the
agency by accountants. All such records
must be held for at least six years.
These records must be
kept at either the agency’s business premises or elsewhere as long as they are
easily accessible and that it is reasonably practicable for any agency member
of staff to arrange for them to be delivered to those premises. Agencies may keep the information in
electronic form so long as it can be reproduced in a legible form and, if no
hard copy is kept, that this reproduction (with reasonable notice) can be
printed.
Interest
The agency is required
to notify a client of any interest earned on any sum being held on behalf of
that client in a client account for more than ten days.
SCHEDULE 3 - Occupations in respect of which employment agencies may charge
fees to work-seekers
SCHEDULE 5 – Particulars to be included in an agency or employment business
records relating to hirers.
SCHEDULE 6 – Particulars to be included in an agency or employment business
records relating to other agencies or employment businesses.
With effect from 6 April 2004 parts of the Employment Relations Act 1999
amended specific sections of the Employment Agencies Act 1973. These included:
APPENDIX – other
legal requirements
Many
additional legal requirements in legislation other that the 1973 Act and the
Conduct employment
Regulations apply to employment agencies and
employment businesses, either specifically or as they apply to businesses or
employers generally. These include the
specific obligations placed on employment agencies and employment businesses by
legislation relating to discrimination in employment described below.
Sex
Discrimination Act 1975 (as amended). The 1975 Act makes it unlawful for an agency
or employment business to discriminate against a person on the grounds of
sex or marriage in relation to the provisions of its services. The Equal Opportunities Commission has
produced a Code of Practice on equal opportunity policies, procedures and
practices in employment, which is available from the Equal Opportunities
Commission, Overseas House, Quay Street, Manchester, M3 3HN (tel 0845 601
5901). The Code is also available from www.eoc.org.uk
Race
Relations Act 1976 (as amended 2000). The legislation makes it unlawful for an
agency to discriminate against a person on the grounds of colour, race,
nationality or ethnic or national origins in relation to the provisions of its
services. The Commission for Racial
Equality’s Race Relations Code of Practice for the elimination of racial
discrimination and the promotion of equal opportunity in employment includes
responsibilities and recommendations for agencies and employment
businesses. Copies are available from
the Commission for Racial Equality, St Dunstan’s House, 201-211 Borough High
Street, London, SE1 1GZ (tel 0207 939 0000) and from www.cre.gov.uk
Trade Union
and Labour Relations (Consolidation) Act 1992. Under this Act it is generally unlawful to
refuse access to employment on grounds related to trade union membership. In particular, the 1992 Act makes it
unlawful for employment agencies or employment businesses to refuse to provide their
normal service to an applicant because of his trade union membership or
non-membership. Guidance booklet PL871
(REV 5) is obtainable in electronic form from www.dti.gov.uk/er
The
Disability Discrimination Act 1995 (DDA) makes it unlawful for
employers to discriminate against disabled employees or job applicants. Employers may have to make reasonable
adjustments to employment arrangements and the workplace. Disabled people who have been discriminated
against can complain to an employment tribunal. Further details are contained in booklet DL170 DDA: What
employers need to know, which is available from the Disability Rights
Commission’s (DRC) helpline (tel 08457 622633 or textphone 08457 622644). Email
enquiry@drc-gb.org or website www.drc-gb.org
Employment
Equality (Sexual Orientation) Regulations 2003 and Employment Equality
(Religion or Beliefs) Regulations 2003 outlaw discrimination in
employment and vocational training on the grounds of sexual orientation and
harassment on the grounds of religion or belief in the workplace respectively.
Guidance can be obtained from ACAS or by visiting the DTI website at www.dti.gov.uk/er/equality
The
Government also intends to introduce legislation to outlaw age discrimination
in employment and vocational training by October 2006.
Advisory,
Conciliation and Arbitration Service (ACAS) provide impartial advice
and information about employment matters including legal rights and duties.
Some of the most frequently asked questions cover the following topics:
·
Discipline and dismissal
·
Notice rights
·
Rights to holiday and holiday pay
·
Family friendly policies
·
Redundancy
·
Pay slips (workers are entitled to itemised pay
slips)
·
Unlawful deductions from wages
ACAS –
National helpline 08457 47 47 47. Helpline for textphone 08456 06 16
00.
Website www.acas.org.uk/
Health
& Safety Executive. All enquiries relating to the health & safety
responsibilities of agencies, employment businesses and hirers should be
addressed to the Health & Safety Executive. The public infoline number is 08701 545500 and their
website address is www.hse.gov.uk
National
Minimum Wage. Agency
workers should receive at least the national minimum wage. Helpline number is 0845 6000 678 and
further details can also be found at www.dti.gov.uk/nmw
Working
Time Regulations affect agency workers. All enquiries should be directed to ACAS (See above for
contact details) .
Information
Commissioner’s Office promotes good information
handling practice and enforces data protection and freedom of information
legislation. The Data Protection
helpline can be contacted at 01625 545 745.
For general enquiries contact 01625 545 700. The website address is www.informationcommissioner.gov.uk
Statutory
Sick Pay. All
enquiries should be directed to your local Inland Revenue office. The Inland Revenue website address is www.inlandrevenue.gov.uk
Businesslink
is an organisation managed by the DTI which offers
practical help and advice for business.
Their helpline number is 0845 600 9006 and the website address is www.businesslink.gov.uk
DEPARTMENT OF
TRADE AND INDUSTRY – EMPLOYMENT AGENCY STANDARDS INSPECTORATE
Employment Agency Standards
Inspectorate
Department
of Trade and Industry
3134
1 Victoria
Street
London
SWIH 0ET
E-mail
Helpline
0845 955
5105 (UK) all calls charged at local rates
+44 20
7215 5980 (International)
020 7215
6740 Minicom (text phone)
Fax
020 7215
2636 (UK)
+44 20
7215 2636 (International)
