The Conduct of Employment Agencies and Employment Businesses Regulations 2003
| Year | 2003 |
2003 No. 3319
EMPLOYMENT AGENCIES, ETC.
The Conduct of Employment Agencies and Employment Businesses Regulations 2003
Made 17th December 2003
Whereas a draft of the following Regulations was laid before Parliament in accordance with section 12(5) of the Employment Agencies Act 19731and 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 19732and 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
Citation and commencement
1.—(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.
Interpretation
2. 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 Act3and 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 19714in 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 19905;
“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.
The meaning of “connected”
3.—(1) For the purposes of these Regulations a person is connected with—
(a)
(a) his spouse or minor child or stepchild;
(b)
(b) any individual who employs him or is his employee;
(c)
(c) any person who is in partnership with him;
(d)
(d) any company of which he is a director or other officer and any company connected with that company;
(e)
(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 19856, 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)
(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)
(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)
(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)
(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.
Transitional and Saving Provisions and Revocation
4.—(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)
(a) the Conduct of Employment Agencies and Employment Businesses Regulations 19767;
(b)
(b) the Employment Agencies Act 1973 (Charging Fees to Workers) Regulations 19768; and
(c)
(c) the Employment Agencies Act 1973 (Charging Fees to Au Pairs) Regulations 19819.
PART II
GENERAL OBLIGATIONS
Restriction on requiring work-seekers to use additional services
5. 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.
Restriction on detrimental action relating to work-seekers working elsewhere
6.—(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)
(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)
(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)
(a) the loss of any benefits to which the relevant work-seeker might have become entitled had he not terminated the contract;
(b)
(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)
(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.
Restriction on providing work-seekers in industrial disputes
7.—(1) Subject to paragraph (2) an employment business shall not introduce or supply a work-seeker to a hirer to perform—
(a)
(a) the duties normally performed by a worker who is taking part in a strike or other industrial action (“the first worker”), or
(b)
(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 199210.
Restriction on paying work-seekers' remuneration
8.—(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)
(a) pay to;
(b)
(b) make arrangements for the payment to; or
(c)
(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—
(i) (a)
(i) (a) 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)
(b) the hirer and the agency are...
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