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Part 4 Guidance for Employment Agencies, Recruitment Agency

 
PART V
SPECIAL SITUATIONS
Regulation 23 � Situations where more than one agency or
employment business is involved
Regulation 23 deals with the situation where there is more than one
employment agency or employment business involved in providing workfinding
services.
23
Regulation 23(1)(a) and (b) require that where the introduction or supply
of work-seekers is organised through more than one employment agency
or employment business, the first employment agency or employment
business must make enquiries and receive satisfactory answers to
ascertain that the second employment agency or employment business,
and any subsequent ones are suitable to act in that capacity. In addition,
the first and second (and any subsequent) employment agency or
employment business must agree in what capacity each of them will act,
namely whether as an employment agency or an employment business.
Regulation 23(1)(c) relates specifically to those employment agencies
supplying persons in the occupations specified in Schedule 3, e.g.
performers, models and professional sports persons, who agencies are
permitted to charge for providing work-finding services) and provides, at
regulation 23(1)(c)(i), that where the first agent is acting as an agency in
relation to the work-seeker, it must ensure that the hirer has been
informed that any payment due to the work-seeker must be paid either
directly to the work-seeker, or to itself, rather than to the second agent.
Or, under regulation 23(1)(c)(ii)(aa), where the first and the second agent
have agreed that the second agent may receive any payment due to the
work-seeker, the first and the second agency must have agreed that the
second agency will pass the monies to the first agency or to the workseeker
within 10 days of the second agency having received it. Provided
that there is no legal provision preventing it, the agencies should agree
that the work-seeker may enforce the agreement that the second agent
should pay any monies due. These agreements between the first and
second agent must be recorded either on paper or electronically.
Under regulation 23(2), the first employment agency or employment
business cannot assign or sub -contract any of its obligations under any
contract or arrangement with a work-seeker or hirer to another
employment agency or employment business, unless (1) it has obtained
the prior consent of the work-seeker or the hirer for whom it acts. (2) that
a copy of the terms, which it has assigned or sub-contracted its
obligations, are recorded in a single document and (3) a copy of that
document is provided to either the work-seeker or the hirer for whom it
acts.
In the entertainment sector, it is not uncommon for this arrangement
(commonly termed �spilt deals�) to involve more than two agents. In this
case, the same principles apply in that the first employment agency in the
chain takes primary responsibility for the work-seeker and written
agreements between all parties establish the chain for monies owed and
the work-finding fee to be paid.
Regulation 24 - Situations where work-seekers are provided with
travel or required to live away from home
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Regulation 24(1) provides that an employment agency or employment
business must not arrange employment for an au pair where s/he is to be
required to repay the hirer or agency/employment business the fare for
the journey (from his/her home to the hirer�s home or from the hirer�s
home to his/her home) out of money payable to him/her either by the
hirer or by the agency or employment business. The agency or
employment business may, therefore, require that an au pair pays his/her
own return fare from his/her home to his/her place of employment with
the hirer but it cannot require that the cost of the fare comes out of
his/her pay.
Under regulation 24(2) an employment agency or employment business
must not arrange work for a work-seeker (except in situations where they
are given a contract of employment by the hirer) if, in order to take up
that work s/he must live away from home, unless it has taken all
reasonable steps to ensure that (in accordance with regulation 24(3):
(a) suitable accommodation will be available for him/her before s/he
starts work; and
(b) the work-seeker has been informed of details of the accommodation
including any cost to him/her; and suitable arrangements have been
made for him/her to travel to such accommodation.
Please note that by virtue of the provisions of regulation 32(8) references
to the work-seeker in regulation 24(2), (3), (4), (5), (7) and (8) must, in
the case of limited company contractors which have not opted out of the
Regulations, be read as references to the person who would be supplied
by the work-seeker to carry out the work in question.
Regulation 24(4) provides that, in circumstances where the work-seeker
is not the employee of the hirer (i.e. the work-seeker is a temporary
worker supplied by an employment business or is being introduced by an
employment agency to do a modelling or entertainment job); or the workseeker
is under 18 years of age, and, in either situations, the
employment agency, the employment business or the hirer, has arranged
free travel or payment of the work-seeker�s fares for the journey to work,
the agency or employment business must, if the work does not start or
when it finishes either;
(a) arrange free travel for the return journey; or
(b) pay the work-seeker�s return fare; or
(c) obtain an undertaking from the hirer that s/he will arrange free
return travel or pay the return fare.
In these circumstances an agency or employment business must give
notice to the work-seeker setting out the details of the free travel or
payment of fares including any conditions on which these arrangements
are offered.
Regulation 24(5) provides that if a hirer does not comply with its
undertaking to arrange free return travel or pay the return fare, the
25
agency or employment business must either arrange free travel for the
return journey of the work-seeker or alternatively pay his/her fare.
Under regulation 24(6), where a work-seeker is seeking employment as
an au pair or in private domestic service, the agency or employment
business must ensure that the work-seeker is provided with such
information as s/he may reasonably request in order to decide whether to
take up the position.
Regulation 24(7) and (8) require that the agency or employment business
must not introduce or supply a work-seeker who is under the age of
eighteen for a position where s/he is required to live away from home,
unless it has obtained direct consent from a parent or guardian to do so.
Regulation 24(11) provides that this provision will not apply to any person
under 18 to whom section 25 of the Children & Young Persons Act 1933
or section 42 of the Children and Young Persons Act 1963 applies i.e.
the need to obtain a licence for a child under the age of 18 going abroad
to perform for profit.
Under regulation 24(9), if a work-seeker takes up a position on the basis
that he/she is loaned money, either by the hirer or the employment
agency or employment business, to meet his/her travel or other
expenses to take up the position, , the work-seeker cannot be required to
repay a sum greater than the sum loaned. This will prohibit the agency or
employment business or the hirer from charging interest on such a loan.
Where such sums are to be loaned, regulation 24(10) requires that the
agency or employment business provides the work-seeker with full
details of the repayment terms of the loan in writing unless, in the case of
a loan from a hirer, it is not aware of the details.
The term �work-seeker� in this regulation also refers, by virtue of the
provisions of regulation 32(7), to limited company contractors and
persons supplied through limited company contractors to carry out the
work in question unless the limited company contractor has given notice
to opt out of the Regulations.
24(12) defines an au pair for the purposes of this regulation. The
definition is consistent with that used for immigration purposes


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