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12 August 2020
Protection for work-seekers and hirers
Employment agencies (recruiters)
Employment businesses (temping agencies)
Opting out of conduct regulations
Services outside conduct regulations' scope
Modelling and entertainment agencies
The supply of labour is a growing area of the UK economy. As employers require more flexible staffing solutions, new business models have emerged offering a range of labour-supply options.
Many businesses that have historically provided services have also expanded into the supply of labour, providing their clients with people to supplement their existing workforce.
This article sets out the key obligations of businesses that supply labour and the consequences of non-compliance.
The United Kingdom has for decades regulated its recruitment industry and the supply of labour. The Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the conduct regulations) regulate businesses providing work-finding services. These laws stipulate when fees may be charged and the terms which must be contained in contracts governing the supply of labour. They also mandate various record-keeping and administrative requirements.
The concept of 'work-finding' services is broad, covering much more than just traditional recruitment firms and temping agencies. Businesses within scope include:
Regardless of whether a business model constitutes providing work-finding services, bringing it within the scope of the Employment Agencies Act or the conduct regulations is ultimately a matter for the courts to determine on the particular facts of the case.
While this article considers the main statutory obligations that apply across all forms of labour supply, certain sectors are subject to additional regulation. For example, in the agriculture and food processing sectors, labour suppliers must be licensed by the Gangmasters and Labour Abuse Authority. Licensing is also required in much of the care sector.
This article uses the following definitions:
The Employment Agencies Act defines two types of staffing provider:
Many traditional recruitment businesses provide both types of service to hirers and work-seekers.
The statutory regime seeks to prevent bad practice in the industry and includes protections for work-seekers and, in some cases, hirers. Employment agencies and employment businesses are prevented from:
Hirers are entitled to be notified if the employment agency (within three months of introducing a work-seeker) or the employment business (at any time) receives information that a work-seeker is no longer suitable for the work.
Employment agencies make introductions to hirers which then engage work-seekers directly. An introduction includes any form of job-matching service where, through the provision of information, work-seekers can find work with hirers. Publishers of job ads are not within scope if work-seekers contact hirers directly and do not go through the publisher.
Employment agencies are subject to less regulation than employment businesses because the hirer will have a direct contractual relationship with the successful work-seeker. This is often an employment contract, but not always. Hirers may also engage work-seekers directly as workers, contractors or consultants.
Employment agencies must:
Unless a special exemption for entertainment or modelling agencies applies (see below), employment agencies cannot make payments to work-seekers or be involved in any payment arrangements with work-seekers. (Only employment businesses can do this.)
Employment agencies often charge fees either on a one-off basis for a successful appointment or on a retainer basis where a hirer pays fees upfront or on receipt of a shortlist of candidates.
Employment businesses supply labour to hirers on a temporary or ongoing basis. They act as intermediaries to supply work-seekers to carry out work for hirers. The employment business contracts with the work-seeker and remains involved in the payment flow. There is normally a commercial contract between the employment business and the hirer, with no contract between the hirer and the work-seeker.
Employment businesses must:
Employment businesses are prohibited from supplying work-seekers to perform work affected by industrial action.
Employment businesses must also comply with any applicable requirements under the AWR.(1)
If a hirer is using one employment business, but then decides to use a different one or seeks to engage a work-seeker directly, employment businesses sometimes charge hirers additional fees to compensate for the loss of that individual from their roster of available work-seekers. These fees, referred to as 'transfer fees', 'temp-to-perm fees' or 'temp-to-temp fees', are subject to strict rules under the conduct regulations.
No fee can be charged if there is no transfer fee clause. When there is a clause in an employment business's terms of business with hirers, it may charge transfer fees only if both of the following apply:
Any attempt by an employment business to request payment of a transfer fee which does not meet the above criteria is a breach of the conduct regulations.
If the work-seeker is a limited company contractor (often a personal services company), they can choose to opt out of the protection provided by the conduct regulations. The limited company and the individual who will perform the work must give written notice to the employment business or employment agency that they have agreed to opt out.
For the opt-out to be effective, the employment agency or employment business must inform the hirer of the existence of the written notice before the work starts.
Once the opt-out is in place, employment agencies and employment businesses can charge fees for work-finding services to the limited company contractor, but only in circumstances where the hirer is not also charged a fee.
Employment agencies and employment businesses cannot insist that contractors opt out, and opting out is prohibited when the work involves any child or vulnerable person.
Certain types of organisation are excluded from the statutory regime, including:
In addition, where a supplier is not providing labour but is instead providing outsourced services (eg, catering services, cleaning services or IT helpdesk support), the supply will be outside the scope of the conduct regulations. Sometimes it is unclear whether a supplier is providing:
Various factors will need to be considered to make this determination, and specialist advice should be sought. Two specific points to look out for are as follows:
Employees seconded from one business to another will also be outside the scope of the conduct regulations. This applies if the employee was employed for a conventional job (ie, they are not employed in order to be supplied as supplementary labour to hirers) and will return to their conventional employment with the service provider at the end of the secondment.
In complex staffing-supply arrangements, other intermediaries may also be involved in the supply chain between the hirer and the work-seeker. These could include master vendors (described further below), payroll providers and umbrella companies (used to employ lots of work-seekers, often as an alternative to each work-seeker setting up their own limited company). In some cases, these intermediaries may also be acting as employment businesses and so will be subject to the statutory regime.
A 'master vendor' is a term used to describe an employment business which, in addition to supplying its own work-seekers, contracts with other employment businesses to provide extra work-seekers when needed to fulfil a hirer's requirements. Another example of an intermediary acting as an employment business is when a hirer contracts directly with an umbrella company to provide additional staffing. In that situation, the umbrella company may also be acting as an employment business and, if so, it will be subject to the statutory regime and must ensure pay-matching under the AWR.
Special exemptions apply for entertainment and modelling agencies, which permit them to charge work-seekers a fee for their services (often in the form of an agreed percentage). This exemption applies to a fixed list of roles set out in a schedule to the conduct regulations, including:
Modelling or entertainment agencies act as employment agencies and maintain special client accounts for work-seekers which allow them to accept fees on their behalf for their performances.
In contrast to the usual approach, hirers that engage work-seekers in these industries will have agreements in place with both the agent and the work-seeker who will deliver the performance.
If an employment agency or employment business breaches its obligations, hirers and work-seekers (and often competitors) can complain to the Employment Agency Standards (EAS) Inspectorate. The inspectorate has wide powers to enter and inspect businesses, including accessing and removing documents, records and financial information.
Any breach of the conduct regulations is a criminal offence, as is any breach of the Employment Agencies Act's prohibition on charging fees to work-seekers for providing services. The EAS Inspectorate can bring prosecutions which may result in unlimited fines if an employment agency or employment business is found guilty of an offence. Individuals can also be subject to prohibition orders issued by employment tribunals which prohibit them from carrying on or being concerned in any employment agency or employment business.
The EAS Inspectorate takes a risk-based approach to enforcement and focuses on protecting the most vulnerable work-seekers who are at risk of exploitation. It also seeks to recover any money owed to work-seekers or unlawful fees charged thereto.
Hirers and work-seekers may also bring claims in the civil courts against employment agencies and employment businesses where, as a result of non-compliance with the statutory regime, they suffer loss or damage.
In the United Kingdom, unless operating in specific sectors such as care or agriculture (see above), staffing suppliers do not require a licence in order to operate as an employment agency or employment business. However, in many other countries, licences are required and staffing suppliers are subject to even more onerous compliance regimes. In some European countries, the illegal lending of employees is a criminal offence.
Staffing suppliers that operate cross-border or internationally should understand local requirements before providing services to hirers or work-seekers.
As of April 2020, all employment businesses must issue KIDs to new work-seekers prior to agreeing terms of engagement. These must set out:
Where the work-seeker is being supplied either through a personal services company or an umbrella company (an intermediary), the KIDs must set out the identity of the person who will pay the work-seeker. In addition, the KIDs must provide details of any costs or deductions applied by that intermediary, as well as any costs and deductions applied by the employment business.
Employment businesses must also include a worked example, using real figures, showing pay and deductions. If employment businesses offer various engagement models for work-seekers, they will need different KIDs for each option.
The KIDs must also provide details about the EAS Inspectorate, including its contact information, in case the work-seeker wishes to make a complaint. This may increase work-seeker awareness of the inspectorate and could result in it receiving more complaints for investigation.
From April 2021, users of self-employed people working through a personal services company must assess their IR35 status and deduct PAYE from their fee if they do not meet the self-employment status requirements. In the case of a chain involving an employment business, the hirer must undertake the IR35 assessment and communicate that to the employment business. The employment business must then deduct PAYE from the work-seeker's fee.(2)
For further information on this topic please contact Carla Feakins at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information please see "Agency workers".
(2) For further information please see "IR35 reforms from April 2021".
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