DTI: Employment Agencies Act

A recent article on UKTECH led to considerable debate about opting out from agencies regulations. It also attracted the attention of the DTI, who sent this response to UKTECH.

The DTI said:

I am writing to you regarding an article that appears on your UKTECH website relating to workers opting out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Conduct Regulations).

The link to the article is Avoiding deemed employment - Sept 2006.

In this article it clearly states that 'It is allowable for recruitment agencies and businesses to advertise roles as being 'optout 'roles and it is up to the end client to request this when notifying the agency of the vacancy'.

I should explain that the Department of Trade and Industry's Employment Agency Standards (EAS) Inspectorate is responsible for enforcing the provisions of the Employment Agencies Act 1973 and associated regulations.

This legislation requires employment agencies and employment businesses to abide by specified minimum standards of conduct.

Further details about the legislation can be obtained from our website. I must inform you that under regulation 32 of the Conduct Regulations (set out below) workers who supply their services through a limited company are (with effect from 1 July 2004) covered by the Conduct Regulations.

However, such workers will not be covered by the Conduct Regulations where they agree that they should not apply and have given notice of that agreement to the agency before the worker is introduced to any hirer.

However, I must advise you that a worker who is a limited company cannot opt out of the regulations if the worker is or would be involved in working with or attending any person who is under the age of 18, or who, by reason of age, infirmity or any other circumstance, is in need of care or attention.

Moreover, an agency may not make the provision of work finding services to a work-seeker which is a company conditional upon the worker entering into and giving notice to opt out.

It would seem therefore, that if an agency advertised a vacancy that was only open to workers who will agree to opt out of the conduct regulations, that agency could be in breach of the regulations by making such a condition in any such advertisement. The wording in this article could lead to agencies breaching the Conduct Regulations.

Regulation 32(1) Subject to paragraph (9), in these Regulations

(a) any reference to a work-seeker, howsoever described, includes a work-seeker which is a company; and

(b) the regulations mentioned below shall be modified as set out below in a case where the work-seeker is a company.

Regulation 32(9) Subject to paragraph (12), paragraphs (1)-(8) shall not apply where a work-seeker which is a company, and the person who is or would be supplied by that work-seeker to carry out the work, agree that they should not apply, and give notice of that agreement to an employment business or agency, provided that such notice is given before the introduction or supply of the work-seeker or the person who would be supplied by the work-seeker to do the work, to the hirer.

Regulation 32(12) Paragraph (9) shall not apply where a person who is or would be supplied to carry out the work by a work-seeker which is a company, is or would be involved in working or attending any person who is under the age of 18, or who, by reason of age, infirmity or any other circumstance, is in need of care or attention. Regulation 32(13) Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9), to the agency or employment business.