The Conduct of Employment Agencies and Employment Businesses Regulations 2003

Acts of Parliament

Employment

Crown Copyright Acknowledged

STATUTORY INSTRUMENTS

The Conduct of Employment Agencies and Employment Businesses Regulations 2003


	Made		17th December 2003
	Coming into force		6th April 2004
	except regulations 26(7) and 32regulations 26(7) and 32		6th July 2004

	S.I. 2003 No. 3319
	Whereas a draft of the following Regulations was laid before Parliament in accordance with section 12(5) of the Employment Agencies Act 1973[1] and approved by a resolution of each House of Parliament;
	Now, therefore, the Secretary of State, in exercise of the powers conferred on her by sections 5(1), 6(1) and 12(3) of the Employment Agencies Act 1973[2] and having consulted such bodies as appear to her to be representative of the interests concerned, hereby makes the following Regulations:

PART I

GENERAL AND INTERPRETATION

1-	Citation and commencement

	(1)	These Regulations may be cited as the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
	(2)	With the exception of regulations 26(7) and 32, the Regulations shall come into force on 6th April 2004.
	(3)	Regulations 26(7) and 32 shall come into force on 6th July 2004.

2-	Interpretation
	In these Regulations, unless the context otherwise requires -

		"the Act" means the Employment Agencies Act 1973;
		"advertisement" includes every form of advertising by whatever means;
		"agency" means an employment agency as defined in section 13(1) and (2) of the Act[3] and includes a person carrying on an agency, and in the case of a person who carries on both an agency and an employment business means such a person in his capacity in carrying on the agency;
		"business day" means a day other than a Saturday or a Sunday, Christmas Day or Good Friday, or a day which is a bank holiday under or by virtue of the Banking and Financial Dealings Act 1971[4] in that part of Great Britain;
		"company" includes any body corporate (whether incorporated in Great Britain or elsewhere) and references to directors and other officers of a company and to voting power at any general meeting of a company have effect in the case of a company incorporated outside Great Britain with any necessary modifications;
		"employment business" means an employment business as defined in section 13(1) and (3) of the Act and includes a person carrying on an employment business, and in the case of a person who carries on both an employment business and an agency means such a person in his capacity in carrying on the employment business;
		"hirer" means a person (including an employment business) to whom an agency or employment business introduces or supplies or holds itself out as being capable of introducing or supplying a work-seeker;
		"publication" means any publication whether in paper or electronic form other than a programme service within the meaning of the Broadcasting Act 1990[5];
		"work-finding services" means services (whether by the provision of information or otherwise) provided -

		(a)	by an agency to a person for the purpose of finding that person employment or seeking to find that person employment;
		(b)	by an employment business to an employee of the employment business for the purpose of finding or seeking to find another person, with a view to the employee acting for and under the control of that other person;
		(c)	by an employment business to a person (the "first person") for the purpose of finding or seeking to find another person (the "second person"), with a view to the first person becoming employed by the employment business and acting for and under the control of the second person;

"work-seeker" means a person to whom an agency or employment business provides or holds itself out as being capable of providing work-finding services.

3-	The meaning of "connected"

(1)

For the purposes of these Regulations a person is connected with -

		(a)	his spouse or minor child or stepchild;
		(b)	any individual who employs him or is his employee;
		(c)	any person who is in partnership with him;
		(d)	any company of which he is a director or other officer and any company connected with that company;
		(e)	in the case of a company -

			(i)	any person who is a director or other officer of that company;
			(ii)	any subsidiary or holding company, both as defined in section 736 of the Companies Act 1985[6], of that company and any person who is a director or other officer, or an employee of any such subsidiary or holding company;
			(iii)	any company of which the same person or persons have control; and

		(f)	in the case of a trustee of a trust, a beneficiary of the trust, and any person to whom the terms of the trust confer a power that may be exercised for that person's benefit.

(2)

For the purposes of paragraph (1)(e)(iii) a person is to be taken as having control of a company if -

		(a)	he or any person with whom he is connected is a director of that company or of another company which has control of it;
		(b)	the directors of that company or another company which has control of it (or any of them) are accustomed to act in accordance with his directions or instructions; or
		(c)	he is entitled to exercise, or control the exercise of, one third or more of the voting power at any general meeting of the company or of another company which has control of it.

4-	Transitional and Saving Provisions and Revocation

	(1)	The transitional and saving provisions in Schedule 1 shall apply.
	(2)	Subject to the provisions of Schedule 1, the following statutory instruments are hereby revoked -

		(a)	the Conduct of Employment Agencies and Employment Businesses Regulations 1976[7];
		(b)	the Employment Agencies Act 1973 (Charging Fees to Workers) Regulations 1976[8]; and
		(c)	the Employment Agencies Act 1973 (Charging Fees to Au Pairs) Regulations 1981[9].

PART II

GENERAL OBLIGATIONS

5-	Restriction on requiring work-seekers to use additional services
	Neither an agency nor an employment business may make the provision to a work-seeker of work-finding services conditional upon the work-seeker -

	(a)	using other services for which the Act does not prohibit the charging of a fee, or
	(b)	hiring or purchasing goods,

whether provided by the agency or the employment business or by any person with whom the agency or employment business is connected.

6-	Restriction on detrimental action relating to work-seekers working elsewhere

(1)

Neither an agency nor an employment business may (whether by the inclusion of a term in a contract with a relevant work-seeker or otherwise) -

		(a)	subject or threaten to subject a relevant work-seeker to any detriment on the ground that -

			(i)	the relevant work-seeker has terminated or given notice to terminate any contract between the work-seeker and the agency or employment business, or
			(ii)	in the case of an employment business, the relevant work-seeker has taken up or proposes to take up employment with any other person; or

		(b)	require the relevant work-seeker to notify the agency or the employment business, or any person with whom it is connected, of the identity of any future employer of the relevant work-seeker.

(2)

For the avoidance of doubt, the following shall not constitute a detriment within the meaning of paragraph (1)(a) -

		(a)	the loss of any benefits to which the relevant work-seeker might have become entitled had he not terminated the contract;
		(b)	the recovery of losses incurred by an agency or employment business as a result of the failure of the relevant work-seeker to perform work he has agreed to perform; or
		(c)	a requirement in a contract with the agency or employment business for the work-seeker to give a period of notice which is reasonable to terminate the contract.

(3)

In this regulation, "relevant work-seeker" means any work-seeker other than, in the case of an employment business, a work-seeker who is or will be employed by the employment business under a contract of service or apprenticeship.

7-	Restriction on providing work-seekers in industrial disputes

(1)

Subject to paragraph (2) an employment business shall not introduce or supply a work-seeker to a hirer to perform -

		(a)	the duties normally performed by a worker who is taking part in a strike or other industrial action ("the first worker"), or
		(b)	the duties normally performed by any other worker employed by the hirer and who is assigned by the hirer to perform the duties normally performed by the first worker,

		unless in either case the employment business does not know, and has no reasonable grounds for knowing, that the first worker is taking part in a strike or other industrial action.
	(2)	Paragraph (1) shall not apply if, in relation to the first worker, the strike or other industrial action in question is an unofficial strike or other unofficial industrial action for the purposes of section 237 of the Trade Union and Labour Relations (Consolidation) Act 1992[10].

8-	Restriction on paying work-seekers' remuneration

(1)

Subject to paragraph (2), an agency shall not, in respect of a work-seeker whom the agency has introduced or supplied to a hirer -

		(a)	pay to;
		(b)	make arrangements for the payment to; or
		(c)	introduce or refer the hirer to any person with whom the agency is connected with a view to that person paying to, or making arrangements for the payment to,

		the work-seeker, his remuneration arising from the employment with the hirer.
	(2)	Paragraph (1) shall not apply in the case of an introduction or supply of a work-seeker to a hirer where -

		(a)

			(i)	the agency is permitted by regulation 26(1) to charge a fee to that work-seeker in respect of that introduction or supply; and
			(ii)	the agency complies with the provisions of regulation 25 and Schedule 2; or

		(b)	the hirer and the agency are connected.

9-	Restriction on agencies and employment businesses purporting to act on a different basis

	(1)	Neither an agency nor an employment business may, in relation to the introduction or supply of a work-seeker to a hirer, purport to the work-seeker to be acting as an agency and purport to the hirer to be acting as an employment business.
	(2)	Neither an agency nor an employment business may, in relation to the introduction or supply of a work-seeker to a hirer, purport to the work-seeker to be acting as an employment business and purport to the hirer to be acting as an agency.

10-	Restriction on charges to hirers

(1)

Any term of a contract between an employment business and a hirer which is contingent on a work-seeker taking up employment with the hirer or working for the hirer pursuant to being supplied by another employment business is unenforceable by the employment business in relation to that work-seeker unless the contract provides that instead of a transfer fee the hirer may by notice to the employment business elect for a hire period of such length as is specified in the contract during which the work-seeker will be supplied to the hirer -

		(a)	in a case where there has been no supply, on the terms specified in the contract; or
		(b)	in any other case, on terms no less favourable to the hirer than those which applied immediately before the employment business received the notice.

	(2)	In paragraph (1), "transfer fee" means any payment in connection with the work-seeker taking up employment with the hirer or in connection with the work-seeker working for the hirer pursuant to being supplied by another employment business.
	(3)	Any term as mentioned in paragraph (1) is unenforceable where the employment business does not supply the work-seeker to the hirer, in accordance with the contract, for the duration of the hire period referred to in paragraph (1) unless the employment business is in no way at fault.
	(4)	Any term of a contract between an employment business and a hirer which is contingent on any of the following events, namely a work-seeker -

		(a)	taking up employment with the hirer;
		(b)	taking up employment with any person (other than the hirer) to whom the hirer has introduced him; or
		(c)	working for the hirer pursuant to being supplied by another employment business,

		is unenforceable by the employment business in relation to the event concerned where the work-seeker begins such employment or begins working for the hirer pursuant to being supplied by another employment business, as the case may be, after the end of the relevant period.
	(5)	In paragraph (4), "the relevant period" means whichever of the following periods ends later, namely -

		(a)	the period of 8 weeks commencing on the day after the day on which the work-seeker last worked for the hirer pursuant to being supplied by the employment business; or
		(b)	subject to paragraph (6), the period of 14 weeks commencing on the first day on which the work-seeker worked for the hirer pursuant to the supply of that work-seeker to that hirer by the employment business.

	(6)	In determining for the purposes of paragraph (5)(b) the first day on which the work-seeker worked for the hirer pursuant to the supply of that work-seeker to that hirer by the employment business, no account shall be taken of any supply that occurred prior to a period of more than 42 days during which that work-seeker did not work for that hirer pursuant to being supplied by that employment business.
	(7)	An employment business shall not -

		(a)	seek to enforce against the hirer, or otherwise seek to give effect to, any term of a contract which is unenforceable by virtue of paragraph (1), (3) or (4); or
		(b)	otherwise directly or indirectly request a payment to which by virtue of this regulation the employment business is not entitled.

11-	Entering into a contract on behalf of a client

(1)

An employment business shall not enter into, nor purport to enter into, a contract -

		(a)	on behalf of a work-seeker, with a hirer; or
		(b)	on behalf of a hirer, with a work-seeker.

(2)

An agency shall not enter into, nor purport to enter into, a contract -

		(a)	on behalf of a work-seeker, with a hirer; or
		(b)	on behalf of a hirer, with a work-seeker,
			unless the requirements in paragraph (3) are satisfied.

(3)

The requirements referred to in paragraph (2) are that -

		(a)	the person for whom the agency acts has appointed the agency as his agent with authority to enter into the contract on his behalf; and
		(b)	where the agency acts for the work-seeker, it is permitted by regulation 26(1) to charge a fee in relation to the introduction or supply to which the contract relates.

	(4)	Where an agency enters into a contract on behalf of a work-seeker with a hirer, or on behalf of a hirer with a work-seeker, the agency shall ensure that the terms of the contract are notified to the party on whose behalf the agency entered into the contract, as soon as is reasonably practicable and in any event no later than the end of the fifth business day following the day on which the agency entered into the contract.
	(5)	Where an agency enters into a contract on behalf of a work-seeker with a hirer, or on behalf of a hirer with a work-seeker, the agency shall ensure that the terms of the contract are notified to the party or parties to the contract other than the party on whose behalf the contract was entered into, as soon as is reasonably practicable and in any event no later than the end of the fifth business day following the day on which the agency entered into the contract.
	(6)	An agency shall not enter into a contract between a work-seeker and a hirer on behalf of both the work-seeker and the hirer.

12-	Prohibition on employment businesses withholding payment to work-seekers on certain grounds
	An employment business shall not, in respect of a work-seeker whom it supplies to a hirer, withhold or threaten to withhold from the work-seeker (whether by means of the inclusion of a term in a contract with the work-seeker or otherwise) the whole or any part of any payment in respect of any work done by the work-seeker on any of the following grounds -

	(a)	non-receipt of payment from the hirer in respect of the supply of any service provided by the employment business to the hirer;
	(b)	the work-seeker's failure to produce documentary evidence authenticated by the hirer of the fact that the work-seeker has worked during a particular period of time, provided that this provision shall not prevent the employment business from satisfying itself by other means that the work-seeker worked for the particular period in question;
	(c)	the work-seeker not having worked during any period other than that to which the payment relates; or
	(d)	any matter within the control of the employment business.

PART III

REQUIREMENTS TO BE SATISFIED BEFORE SERVICES ARE PROVIDED

13-	Notification of charges and the terms of offers

(1)

Subject to paragraph (2), on the first occasion that an agency or employment business offers to provide or arrange the provision of a service to a work-seeker, the agency or employment business shall give notice to the work-seeker stating -

		(a)	whether that service is a work-finding service for which the Act prohibits the agency or employment business from charging a fee; and
		(b)	whether any other services or goods which may be provided by the agency or employment business or any other person are services or goods for which the agency or employment business or other person providing them will or may charge a fee, together with details of any such fee including -

			(i)	the amount or method of calculation of the fee;
			(ii)	the identity of the person to whom the fee is or will be payable;
			(iii)	a description of the services or goods to which the fee relates; and
			(iv)	the circumstances, if any, in which refunds or rebates are payable to the work-seeker, the scale of such refunds or rebates, and if no refunds or rebates are payable, a statement to that effect.

	(2)	Paragraph (1) shall apply only where one or more services or goods referred to in paragraph (1)(b) for which the work-seeker will or may be charged a fee may be provided to the work-seeker.
	(3)	An agency or employment business shall give a further notice to a work-seeker stating the matters referred to in paragraph (1)(b) where, subsequent to the first occasion that it offers to provide or arrange the provision of a service to the work-seeker, the agency or employment business or the person providing to the work-seeker any services or goods referred to in paragraph 1(b), introduces or varies any fees in relation to any services or goods referred to in paragraph 1(b).
	(4)	Where an agency or employment business offers any gift or makes an offer of any benefit to a work-seeker, in order to induce him to engage the agency or employment business to provide him with services, the agency or employment business shall notify the work-seeker of the terms on which the gift or benefit is offered before the offer is open for acceptance by the work-seeker.

14-	Requirement to obtain agreement to terms with work-seekers

(1)

Subject to paragraph (7), before first providing any work-finding services to a work-seeker, an agency or employment business shall obtain the agreement of the work-seeker to the terms which apply or will apply as between the agency or employment business and the work-seeker including -

		(a)	whether the agency or employment business will operate as an employment agency or an employment business in relation to the work-seeker;
		(b)	the type of work the agency or employment business will find or seek to find for the work-seeker; and
		(c)	in the case of an employment business, the terms referred to in regulation 15, and in the case of an agency which is to provide any work-finding services mentioned in regulation 16, the terms referred to in that regulation.

(2)

Subject to paragraph (3), an agency or employment business shall ensure that -

		(a)	all terms in respect of which the agency or employment business has obtained a work-seeker's agreement are recorded in a single document, or where this is not possible, in more than one document; and
		(b)	copies of all such documents are given at the same time as each other by the agency or employment business to the work-seeker with whom they are agreed before the agency or employment business provides any services to the work-seeker to which the terms contained in such documents relate.

	(3)	Paragraph (2) shall not apply in the case of an employment business where the work-seeker has been given a written statement of particulars of employment in accordance with Part I of the Employment Rights Act 1996[11].
	(4)	Neither an agency nor an employment business may vary any terms set out in a document issued in accordance with paragraph (2), unless the work-seeker to whom they relate agrees to the variation.
	(5)	If the agency or employment business and the work-seeker agree to any variation in the terms set out in the documents referred to in paragraph (2), the agency or employment business shall as soon as possible and in any event no later than the end of the fifth business day following the day on which the agency or employment business and the work-seeker agree to the variation give to the work-seeker a single document containing details of the terms as agreed to be varied and stating the date on or after which it is agreed that the varied terms are to take effect.
	(6)	Neither an agency nor an employment business may make the continued provision of any services by it to a work-seeker conditional on the agreement by the work-seeker to any such variation.
	(7)	This regulation shall not apply in the case of an agency where the only service provided by the agency to the work-seeker concerned is the provision of information to him in the form of a publication.

15-	Content of terms with work-seekers: Employment businesses
	In the case of an employment business, the terms to be agreed in accordance with regulation 14 shall include -

	(a)	whether the work-seeker is or will be employed by the employment business under a contract of service or apprenticeship, or a contract for services, and in either case, the terms and conditions of employment of the work-seeker which apply, or will apply;
	(b)	an undertaking that the employment business will pay the work-seeker in respect of work done by him, whether or not it is paid by the hirer in respect of that work;
	(c)	the length of notice of termination which the work-seeker will be required to give the employment business, and which he will be entitled to receive from the employment business, in respect of particular assignments with hirers;
	(d)	either -

		(i)	the rate of remuneration payable to the work-seeker; or
		(ii)	the minimum rate of remuneration the employment business reasonably expects to achieve for the work-seeker;

	(e)	details of the intervals at which remuneration will be paid; and
	(f)	details of any entitlement to annual holidays and to payment in respect of such holidays.

16-	Content of terms with work-seekers: Agencies
	In the case of an agency which is to provide the work-seeker with work-finding services for which it is permitted by regulation 26(1) to charge a fee, the terms to be agreed in accordance with regulation 14 shall include -

	(a)	details of the work-finding services to be provided by the agency;
	(b)	details of the agency's authority, if any, to act on behalf of the work-seeker, including whether, and if so, upon what terms it is (in accordance with regulation 11) authorised to enter into contracts with hirers on behalf of the work-seeker;
	(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;
		(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 no refunds or rebates are 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 so deducted;

	(e)	a statement as to whether the work-seeker is required to give notice to terminate the contract between the work-seeker and the agency and, if so, a statement as to the length of the notice required; and
	(f)	a statement as to whether the work-seeker is entitled to receive notice of termination of the contract between the work-seeker and the agency and, if so, a statement of the length of the notice.

17-	Requirement to obtain agreement to terms with hirers

(1)

Before first providing services (other than the provision of information in the form of a publication) to a hirer, an agency or employment business shall agree with the hirer the terms which apply or will apply between the agency or employment business and the hirer, including -

		(a)	a statement as to whether the agency or employment business will operate as an employment agency or an employment business in relation to the hirer;
		(b)	details of any fee which may be payable by the hirer to the agency or employment business including -

			(i)	the amount or method of calculation of such fee; 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 no refunds or rebates are payable, a statement to that effect;

		(c)	in the case of an employment business, details of the procedure to be followed if a work-seeker introduced or supplied to the hirer proves unsatisfactory; and
		(d)	in the case of an agency, details of the agency's authority, if any, to act for the hirer, including whether, and if so upon what terms, it is (in accordance with regulation 11) authorised to enter into contracts with work-seekers on behalf of the hirer.

	(2)	The agency or employment business shall ensure that all of the terms are recorded in a single document and that, unless the hirer has a copy thereof, a copy is sent to the hirer as soon as is reasonably practicable.
	(3)	If the agency or employment business and the hirer agree to any variation in the terms set out in the document referred to in paragraph (2), the agency or employment business shall, unless the hirer has a copy thereof, as soon as is reasonably practicable, give to the hirer a document containing details of the variation and stating the date on or after which it is agreed that the varied terms are to take effect.

1 2 3

Contents

Citation and commencement

Interpretation

The meaning of "connected"

Transitional and Saving Provisions and Revocation

Restriction on requiring work-seekers to use additional services

Restriction on providing work-seekers in industrial disputes

Restriction on charges to hirers

Requirement to obtain agreement to terms with hirers

Information to be obtained from a hirer

Confirmation to be obtained about a work-seeker

Provision of information to work-seekers and hirers

Client accounts