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Part 3 Guidance for Employment Agencies, Recruitment Agency

 
PART III:
REQUIREMENTS TO BE SATISFIED BEFORE SERVICES ARE
PROVIDED
Regulation 13 � Notification of charges and the terms of offers
Regulations 13(1) and 13(2) require that before providing or arranging
the provision of any services to a work-seeker for the first time, an
employment business or employment agency must notify the workseeker
which of its services it may charge a fee for.
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Under section 6(1) of the Employment Agencies Act 1973 employment
agencies and employment businesses are prohibited from charging workseekers
for finding them work. Regulation 26 provides that agencies in
the entertainment and modelling sectors are able to charge a fee for
work-finding services. However, section 6(1) does not prohibit an agency
or employment business from charging for other services, such as CV
writing. Therefore, if the agency or employment business is providing the
work-seeker with more than one service, it must inform him/her which
services are work-finding services for which it is not allowed to charge
and which are the ancillary services that it is allowed to and does charge
for.
If an agency or employment business provides services which may be
charged for, such as CV writing/portfolio preparation, training,
photographic services etc., it must inform work-seekers of the amount of
or method of calculation of any fee for those services, the identity of the
person to whom it is payable, a description of the services and whether
any refunds are payable and how those refunds operate.
Under regulation 13(3), if there is a change to the fees for the services
offered or the goods provided, the work-seeker should be given further
notice detailing the introduction or variation in any fees which
subsequently become payable.
Regulation 13(4) provides that where an employment agency or
employment business offers any gift or makes an offer of any benefit to a
work-seeker, as an inducement for him/her to use its services, it must
make clear the terms and conditions on which the gift or benefit is
offered, before the offer is open for acceptance by the work-seeker.
Regulation 14 � Requirement to obtain agreement to terms with
work-seekers
Regulation 14(1)(a) and (b) require that before an employment agency or
employment business provides any work finding services to a workseeker,
it must agree with the work-seeker the terms which will apply
between it and the work-seeker, including:
(a) whether it operates as an employment agency i.e. looking for
suitable positions for �permanent� or direct employment with
other employers or as an employment business i.e. looking
for temporary assignments for temporary workers;
(b) the type of work which will be sought on his/her behalf; and
(c) if it is acting as an employment business (i.e. supplying the
services of temporary workers/contractors) it must set out the
terms for the work-seeker that are referred to in regulation 15
(see notes on regulation 15 below) and if it is acting as an
employment agency (introducing work-seekers for direct
employment by hirers � �permanent employment�) it must set
out the terms for the work-seeker that are referred to in
regulation 16 (see notes on regulation 16 below). The
14
requirement for employment agencies to set out terms under
regulation 16 will only apply to entertainment and modeling
agencies since, in the wider recruitment industry,
employment agencies do not enter into contracts with workseekers
looking for direct employment with hirers
(�permanent employment�).
Regulation 14(2) provides that an employment agency or employment
business must ensure that all terms which will apply between it and a
work-seeker are put in writing in a single document as far as this is
possible. If it is not possible to put all the terms into a single document,
the agency or employment business may record them in more than one
document provided that all documents relating to the terms between it
and a work-seeker are given to him/her at the same time.
Regulaton 14(3) states that the provisions of Regulation 14(2) do not
apply to an employment business which actually employs the temporary
work-seekers it supplies under contracts of employment (as distinct from
a contract for services) in accordance with Part I of the Employment
Rights Act 1996.
Regulation 14(4) provides that the agency or employment business may
not vary the terms it has agreed with the work-seeker and set out in a
document, unless the work-seeker agrees to the variation. As a matter of
good practice, employment agencies and businesses should ensure that
a work seeker�s consent to a variation in terms is obtained in writing.
Regulation 14(5) provides that if an employment agency or employment
business, and the work-seeker agree to any variation in the terms
already set out in a contract or statement of terms, such as variations to
the pay rate or the type of work, it must as soon as practicable, but at
least before the end of the fifth business day following the day on which it
and the work-seeker agreed to the variation, provide the work-seeker
with another document containing full details of the new terms which
have been varied, including the date from when they take effect. In this
context, the requirement to provide documentary confirmation of the new
terms is a requirement to issue such confirmation and does not stipulate
the time by which the work-seeker must have received it. Similarly, there
is no requirement to reissue the first document as a consequence of
making the amendment(s).
Regulation 14(6) provides that an employment agency or employment
business must not make the continued provision of any services to a
work-seeker conditional on the work-seeker agreeing to any variation in
the terms e.g. a change in the pay rate.
Regulation 14(7) provides that the other provisions of regulation 14 do
not apply in the case of an employment agency, where the only service
provided by it to the work-seeker concerned is the provision of
information to him/her in the form of a publication. This relieves
15
employment agencies, which are solely publishers of information about
vacancies, such as on line job boards, from having to fulfil any of the
requirements of this regulation.
Regulation 15 � Content of terms with work-seekers: Employment
businesses
Regulation 15 provides that an employment business must include in its
agreement with work-seekers the following terms:
(a) whether those work-seekers are or will be employed by it
under a contract of service (i.e. a contract of employment), or
apprenticeship, or a contract for services, and the terms of
employment or engagement that will apply;
(b) an undertaking that it will pay the work-seeker for all work done
regardless of whether it is paid by the hirer;
(c) the length of notice which the work-seeker is required to give
and entitled to receive, to terminate any contract (if the workseeker
is an employee, notice must be not less than statutory
minimum period);
(d) either the rate of pay payable to the work-seeker, or the
minimum rate of pay, which it reasonably expects to achieve
for the work-seeker;
(e) details of the intervals at which remuneration will be paid i.e.
weekly/monthly;
(f) the amount of paid holiday that will be given. The majority of
work-seekers will be covered by the Working Time Regulations
and, therefore, will be entitled to 4 weeks� holiday pay. Regulation
32(4) requires an agency or employment business, in a contract
with a limited company contractor together with the worker to be
supplied, which has not given it notice, to opt out of the regulation
(where annual leave provisions would not apply), to detail any
period of absence that a limited company contractor may be
entitled to and to be paid for. It may be that there are no such
periods, but if there are, details must be included here.
Regulation 16 � Content of terms with work-seekers: Agencies
This regulation applies to agencies providing work finding services to
performers, models and professional sports persons and others as set
out in Schedule 3.
This regulation provides that an agency which is permitted to charge a
work-seeker a fee for finding him/her work must include in its terms with
that work-seeker:
(a) full details of the work finding services, in other words how the
agency goes about finding work for the work-seeker and what is
expected of the agency in order for that function to be discharged
properly and efficiently;
(b) details of the agency�s authority, if any, to act on behalf of the workseeker,
including whether, and if so, upon what terms it is
16
authorised to enter into contracts with hirers on behalf of the workseeker;
(c) a statement as to whether the agency is authorised to receive
money on behalf of the work-seeker;
(d) details of any fee which may be payable by the work-seeker to the
agency for work-finding services including:
(i) the amount or method of calculation of the fee;
(ii) a description of the particular work-finding service to which
the fee relates (i.e. work found, exploitation of rights,
residuals.);
(iii) the circumstances, if any, in which refunds or rebates are
payable to the work-seeker, the scale of such refunds or
rebates, and if none is payable, a statement to that effect;
and
(iv) the method of payment of the fee and, if the fee is to be
deducted from the work-seeker�s earnings received by
the agency, the circumstances in which it is to be deducted;
(e&f) Where notice is required, the terms should include a statement
giving the length of that notice, which the work-seeker is to give and is
entitled to receive to terminate the contract between the work-seeker
and the agency.
Regulation 17 � Requirement to obtain agreement to terms with
hirers
Regulation 17(1) provides that before the first time an agency or
employment business provides services to a hirer, other than the
provision of information in the form of a publication, it must agree with the
hirer the terms and conditions which apply or will apply between them,
including:
(a) a statement as to whether the services provided will be those of an
employment agency or employment business i.e. introducing
candidates for direct employment with employers or supplying
temporary workers;
(b) details of any fee which may be payable to the agency or
employment business by the hirer including:
(i) the amount of the fee or its method of calculation; and
(ii) the circumstances, if any, in which refunds or rebates are
payable to the hirer, the scale of such refunds or rebates and,
if none is payable, that fact must be stated in the terms;
(c) the procedure to be followed if an employment business supplies a
work-seeker to a hirer proves unsatisfactory. An employment
business will normally have a provision in its terms with the hirer
setting out how and within what time limits the hirer should notify the
employment business, if a temporary worker supplied is not
satisfactory and what the employment business will do as a
consequence i.e. terminate the worker�s assignment, seek to rectify
the problem or supply an alternative
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(d) an employment agency should provide details of its authority, if any,
to act for the hirer, including whether, and if so upon which terms it
is authorised to enter into contracts with work-seekers on behalf of
the hirer. E.g. whether it extends to advertising the position and by
what medium.
Under regulation 17(2), an employment agency or employment business
must ensure that all of the terms between it and the hirer are recorded in
a single document and that a copy is provided to the hirer as soon as is
practicable. In practice all the terms between the agency or the
employment business and the hirer should be recorded, when
instructions are given. The document will take the form of a set of terms
of business or a letter setting out all the terms agreed.
Under regulation 17(3), if an employment agency or employment
business, and the hirer agree any changes to the terms, the agency or
employment business must, as soon as reasonably practicable after the
changes have been agreed, give the hirer a new document setting out
details of the changes and stating the date that the varied terms take
effect.
PART IV
REQUIREMENTS TO BE SATISFIED BEFORE A WORK-SEEKER IS
INTRODUCED OR SUPPLIED TO A HIRER
Regulation 18 � Information to be obtained from a hirer
Regulation 18 provides that employment agencies and employment
businesses must not introduce or supply a work-seeker to a hirer unless
it has sufficient information from the hirer to select a suitable work-seeker
for the position the hirer seeks to fill. The following information should be
obtained:-
(a) the identity of the hirer and, if applicable, the nature of the hirer�s
business. This would involve clarifying which company in a group
of companies is the hirer or verifying the identity of an individual
employer;
(b) the date on which the hirer wants a work-seeker to start work and
the duration or likely duration of the work;
(c) the position, including the type of work the work-seeker would be
required to do, the location at which and the hours s/he would be
required to work and any risks to health and safety known to the
hirer and the steps that have been taken by the hirer to prevent or
control such risks. This is an important health and safety point
and careful note should be taken of it. Essentially under this
regulation an agency or employment business must ensure that
the hirer has carried out a thorough risk assessment of its site,
equipment and working conditions so that sufficient information
can be given to the work-seeker before s/he is either supplied or
18
introduced to the hirer; in practice it would be advisable to obtain a
copy of the risk assessment carried out by the hirer.
(d) the experience, training, qualifications and any authorisation which
the hirer considers are necessary, or which the worker needs to
have by law or by the requirements of any professional body in
order to carry out the work. By virtue of the provisions of
regulation 32(5), this requirement also extends to those persons
supplied through limited company contractors where those limited
company contractors have not given the agency or employment
business notice to opt out of the Regulations;
(e) any expenses payable by or to the work-seeker � and this will
include not only expenses payable once the work-seeker starts
work but also any expenses incurred in attending interviews prior
to work commencing. It also includes expenses payable by the
work-seekers, e.g. where they are required to pay for a mandatory
Criminal Records Bureau check; and
(f) in the case of any employment agency:
(i) the minimum rate of pay and any other benefits offered by the
hirer and the intervals at which they would be paid; and, where
applicable,
(ii) the length of notice which a work-seeker would be required to
give and entitled to receive, to end the employment with the
hirer.
Regulation 19 � Confirmation to be obtained about a work-seeker
Provides that an employment agency or employment business must not
introduce or supply a work-seeker to a hirer unless it has obtained
confirmation:
(a) of the identity of the work-seeker. This will mean seeing any
document which provides evidence of the work-seeker�s identity,
such as his/her passport, driving licence, birth certificate.By virtue
of regulation 32(6) this will extend to those persons provided
through limited company contractors, where the notice under
regulation 32(9) to opt out of the scope of the Regulations has not
been given;
(b) that the work-seeker has the experience, training, qualifications
and any authorisation which the hirer considers are necessary, or
which the worker needs to have by law or by the requirements of
any professional body, in order to carry out the work. This
obligation can be properly discharged by the agency or
employment business when registering a work-seeker. During the
registration process it should request sight of evidence of training
received, qualifications and authorisations such as certificates,
and registrations with professional bodies. Again by virtue of the
provisions of regulation 32(6), the requirements here must be
extended to those persons supplied through limited company
contractors, which have not given notice to opt out of the
Regulations; and
(c) that the work-seeker is willing to work in this position.
19
Regulation 20 � Steps to be taken for the protection of the workseeker
and the hirer
Regulation 20(1) provides that an employment agency or employment
business is not allowed to introduce or supply a work-seeker to a hirer
unless it has made checks to ensure that the work-seeker and the hirer
are each aware of any legal or professional body requirements which
either of them have to satisfy to enable the work-seeker to work for the
hirer. It will, of course, mean that the agency or employment business
must be aware of any requirement in relation to particular types of work
or job descriptions and presupposes a good working knowledge of the
sector it is operating in. Evidence of the checks carried out should be
retained, such as, for example, written confirmation from both the hirer
and the work-seeker that they are aware of the legal or professional
requirements that must be satisfied before the work in question is carried
out. Regulation 32(7) extends these obligations to those persons
supplied through limited company contractors where the limited company
contractor and the person to be supplied have not opted out of the
Regulations.
Regulation 20(1)(b) extends this requirement by placing an obligation on
the employment agency or employment business to ensure that it would
not be detrimental to the interests of either party (hirer or work-seeker)
for the placement to go ahead. This is more than a health and safety
issue and could cover matters such as a reasonable suspicion that the
company was in severe financial difficulties or was engaged in immoral
or illegal practices.
Regulation 20(2) provides that if an employment business receives or
obtains information which gives it reasonable grounds (i.e. a realistic
degree of certainty) to believe that a work-seeker is unsuitable for the
position s/he has been supplied to a hirer for, it must inform the hirer of
the information it has and end the supply of that temporary work-seeker
without delay . So, for example, if a temporary teacher is supplied into a
school and during the course of that supply the employment business
receives information about that teacher, through a reference or other
reliable report, which shows s/he is not suitable to work with children, the
employment business must tell the hirer and remove the teacher from the
assignment without delay. (Note: �without delay� is defined as �the
same day, or where that is not reasonably practicable, on the next
business day� (Regulation 20(7))
Regulation 20(3) provides that if an employment business receives or
obtains information which indicates or suggests that the work-seeker may
be unsuitable for the position it has supplied him/her to carry out, but the
information does not give sufficient certainty to enable the employment
business to rely on it without further investigation, it must immediately
20
inform the hirer that the worker may be unsuitable and start investigating
the matter further, as far as the employment business is reasonably able
to. The employment business must keep the hirer informed of the
enquiries it is making and has made and of any further information
obtained on the matter.
Regulation 20(4) provides that, if as a result of such enquiries under
regulation 20(3), the original suggestion that the work-seeker may be
unsuitable becomes a reasonable belief that the work-seeker is in fact
unsuitable, the employment business must inform the hirer and terminate
the assignment without delay.
Regulation 20(5) and (6) provide that where an employment agency
receives or obtains information within 3 months of an introduction of a
work-seeker to a hirer for direct employment by that hirer, and that
information indicates that the work-seeker either is or may be unsuitable
for the position s/he is now employed in by the hirer, it must inform the
hirer of the information. An employment agency has no obligation to
inform a hirer if such information comes to light after three months from
the date the worker was introduced. The Regulations do not define an
introduction but for the proper operation of this regulation, it is advisable
to treat the date on which the work-seeker actually becomes employed or
engaged by the hirer as the date from which the three month period
should be measured. There may be occasions when an introduction has
been made under the employment agency terms of business with that
hirer some considerable time prior to the date on which the work-seeker
actually becomes employed by that hirer. It would obviously defeat the
purpose of this regulation, if an agency failed to disclose information,
which showed or suggested a work-seeker was unsuitable, because it
had introduced him/her more than three months previously. In many
cases the work-seeker would have worked out a long notice period with
his/her previous employer and, therefore, would have either not yet
started work for the hirer or had been working for the hirer for less than
three months.
Regulation 32(7) extends the obligations under regulation 20 to limited
company contractors and those persons supplied through limited
company contractors unless the limited company contractor and the
person to be supplied has given notice to opt-out of the Regulations.
Regulation 21 � Provision of information to work-seekers and hirers
Regulation 21(1)(a) provides that when an employment agency or
employment business proposes a work-seeker to a hirer it must give the
hirer all the information it has obtained about the work-seeker under the
requirements of regulation 19. (Namely the work-seeker�s identity,
experience, training, qualifications and authorisations required and that
the work-seeker is willing to do the work in question.) If it is acting as an
employment business it must also make clear to the hirer the contractual
basis upon which it has engaged the work-seeker i.e. whether the
21
agency or employment business has engaged the work-seeker under a
contract for services or employed them under a contract of employment
(contract of service) or apprenticeship.
Under regulation 21(1)(b), when an agency or employment business
offers a work-seeker a position with a hirer, it must give the work-seeker
the information about the hirer it has obtained under the requirements of
regulation 18. If it is acting as an employment business and has not
previously agreed the actual rate of pay with the work-seeker, for the
position in question, in accordance with regulation 15(d)(i), it must do so
at this stage.
Under regulation 21(2) the information referred to above must be
confirmed in written or electronic form as soon as possible or in any
event no later than the end of the third business day after the hirer/the
work-seeker was first given the information orally. It is important to note
that the requirement is to confirm the information in writing to the relevant
party and not necessarily a requirement to ensure that the workseeker/
hirer has received it. It would be advisable, therefore, to retain a
record that the information has been sent to demonstrate that the
obligations under this regulation have been discharged. This may include
the retention of fax confirmation, certificates of posting or copies of
emails showing the date on which they were sent.
However, regulation 21(3) states that regulation 21(1) does not apply
(unless the work-seeker or hirer requests otherwise) where an agency or
employment business intends to introduce or supply a work-seeker to a
hirer to work in the same position with that hirer as s/he has worked
within the previous five business days and where the information, which
would need to be given, is the same as that already given (other than the
start date of the work and the likely duration of it (regulation 18(b)).
Regulation 22 � Additional requirements where professional
qualifications are required or where work-seekers are to work with
vulnerable persons
Regulation 22(1) and (2) provides that before an agency or employment
business supplies or introduces a work-seeker to a hirer, it must ensure
that:
(a) where that work-seeker is required by law or any
professional body to have qualifications or authorisation to
work in the position in question; and
(b&c) where the work-seeker will be taking up a position which
involves working with or caring for any person(s) under the
age of eighteen, the elderly, infirm or anyone in need of
care and attention;
in addition to having satisfied the requirements in regulations 18 � 21, the
agency or employment business has, in accordance with regulation
22(2), also obtained:
22
(a) copies of any relevant qualifications or authorisations that
the work-seeker needs to work in the position in question
and offered copies of these to the hirer;
(b) two references from persons not related to the work-seeker,
where those persons have agreed that the agency or
employment business can disclose their references to the
hirer, and it has offered to provide copies of the references
in question to the hirer; and
(c) confirmation that the work-seeker is not unsuitable to work
with vulnerable persons. The agency or employment
business is obliged to take reasonably practicable steps to
obtain such confirmation.
Under regulation 22(3), if it has not been possible to comply fully or at all
with the above requirements despite having taken all reasonably
practicable steps to do so, the agency or employment business must
then inform the hirer that it has not been able to comply fully. The
agency or employment business must then inform the hirer of the steps it
has taken in order to comply.
Note: Agencies or employment businesses which arrange for the
employment of nannies or child care within the family home should refer
to any guidance issued by the Department for Education and Skills
relating to child care within the home.
The provisions of regulation 22 extend to limited company contractors
and those persons supplied through limited company contractors by
virtue of regulation 32(7) unless the limited company contractor and the
person to be supplied have given notice to opt-out of the Regulations.
It should be noted that the ability of limited liability contractors to opt out
of the provisions of the Regulations provided under regulation 32(9) does
not apply where the limited liability contractor, or the worker to be
supplied by them, is required to work with vulnerable persons - regulation
32(12).
In this regulation �relative� is regarded as having the meaning as given in
section 63 of the Family Law Act 1996.


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