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Statutory Instrument 2003 No. 3319The Conduct of Employment Agencies and Employment Businesses Regulations 2003(The document as of February, 2008. Arhiv.Online Library) STATUTORY INSTRUMENTS2003 No. 3319EMPLOYMENT AGENCIES, ETC.The Conduct of Employment Agencies and Employment Businesses Regulations 2003
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: 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 -
(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;
The meaning of "connected"
(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 -
(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 -
(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. Transitional and Saving Provisions and Revocation
(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]. 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 -
(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.
(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) -
(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.
(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.
(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.
(ii) the agency complies with the provisions of regulation 25 and Schedule 2; or (b) the hirer and the agency are connected. Restriction on agencies and employment businesses purporting to act on a different basis
(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.
(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.
(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.
(b) otherwise directly or indirectly request a payment to which by virtue of this regulation the employment business is not entitled. Entering into a contract on behalf of a client
(b) on behalf of a hirer, with a work-seeker. (2) An agency shall not enter into, nor purport to enter into, a contract -
(b) on behalf of a hirer, with a work-seeker, unless the requirements in paragraph (3) are satisfied.
(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.
(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. Notification of charges and the terms of offers 13. - (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 -
(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 -
(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.
(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 -
(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].
(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 -
(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 Content of terms with work-seekers: Agencies
(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 -
(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 Requirement to obtain agreement to terms with hirers
(b) details of any fee which may be payable by the hirer to the agency or employment business including -
(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 (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. Information to be obtained from a hirer 18.Neither an agency nor an employment business may introduce or supply a work-seeker to a hirer unless the agency or employment business has obtained sufficient information from the hirer to select a suitable work-seeker for the position which the hirer seeks to fill, including the following information -
(b) the date on which the hirer requires a work-seeker to commence work and the duration, or likely duration, of the work; (c) the position which the hirer seeks to fill, including the type of work a work-seeker in that position would be required to do, the location at which and the hours during which he would be required to work and any risks to health or safety known to the hirer and what steps the hirer has taken to prevent or control such risks; (d) the experience, training, qualifications and any authorisation which the hirer considers are necessary, or which are required by law, or by any professional body, for a work-seeker to possess in order to work in the position; (e) any expenses payable by or to the work-seeker; and (f) in the case of an agency -
(ii) where applicable, the length of notice which a work-seeker in such a position would be required to give, and entitled to receive, to terminate the employment with the hirer. Confirmation to be obtained about a work-seeker
(b) that the work-seeker has the experience, training, qualifications and any authorisation which the hirer considers are necessary, or which are required by law or by any professional body, to work in the position which the hirer seeks to fill; and (c) that the work-seeker is willing to work in the position which the hirer seeks to fill. Steps to be taken for the protection of the work-seeker and the hirer
(b) without prejudice to any of its duties under any enactment or rule of law in relation to health and safety at work, made all such enquiries, as are reasonably practicable, to ensure that it would not be detrimental to the interests of the work-seeker or the hirer for the work-seeker to work for the hirer in the position which the hirer seeks to fill. (2) Where an employment business receives or obtains information, which gives it reasonable grounds to believe that a work-seeker is unsuitable for the position with a hirer for which the work-seeker is being supplied, it shall, without delay -
(b) end the supply of that work-seeker to the hirer. (3) Where an employment business receives or obtains information which indicates that a work-seeker may be unsuitable for the position with a hirer for which the work-seeker is being supplied, but where that information does not give it reasonable grounds to believe that the work-seeker is unsuitable, it shall, without delay -
(b) commence making such further enquiries as are reasonably practicable as to the suitability of the work-seeker for the position concerned, and inform the hirer of the enquiries made and any further information it receives or obtains. (4) Where, as a result of the enquiries made under paragraph (3) an employment business has reasonable grounds to believe that the work-seeker is unsuitable for the position concerned, it shall, without delay -
(b) end the supply of that work-seeker to the hirer. (5) Where an agency, having introduced a work-seeker to a hirer, receives or obtains information, which indicates that the work-seeker is or may be unsuitable for the position in which the work-seeker has been employed with that hirer, it shall inform the hirer of that information without delay.
(ii) in the case of an employment business, the information it gives to the hirer (whether orally or otherwise) includes whether the work-seeker to be supplied will be employed by it under a contract of service or apprenticeship or a contract for services; (b) it offers a work-seeker a position with a hirer -
(ii) in the case of an employment business that has not agreed a rate of remuneration in accordance with regulation 15(d)(i), it informs the work-seeker (whether orally or otherwise) of the rate of remuneration it will pay him to work in that position. (2) Where any of the information referred to in paragraph (1) is not given to the work-seeker or hirer, as the case may be, in paper form or by electronic means at the time referred to in paragraph (1), the agency or employment business shall confirm such information in paper form or by electronic means to the work-seeker or hirer, as the case may be, as soon as possible and in any event no later than the end of the third business day following the day on which it was given to the work-seeker or hirer in accordance with paragraph (1).
(b) the information which that agency or employment business would be required to give the work-seeker and hirer by virtue of this regulation (other than that required by regulation 18(b)), would be the same as the information which the work-seeker and hirer have already received, unless the work-seeker or hirer requests otherwise.
(b) to be supplied or introduced to a hirer with a view to taking up a position which involves working with or caring for or attending any one or more persons under the age of eighteen; or (c) to be supplied or introduced to a hirer with a view to taking up a position which involves caring for or attending any person who by reason of age, infirmity, or any other circumstances is in need of care or attention, neither an agency nor an employment business may introduce or supply him to a hirer unless, in addition to the requirements in regulations 18 to 21, the requirements in paragraph (2) are satisfied.
(b) subject to paragraph (3), obtained two references from persons who are not relatives of the work-seeker and who have agreed that the reference they provide may be disclosed to the hirer, and offered to provide copies thereof to the hirer; and (c) in a case falling within paragraph (1)(b) or (c), taken all other reasonably practicable steps to confirm that the work-seeker is not unsuitable for the position concerned. (3) Where the agency or employment business has taken all reasonably practicable steps to comply with the requirements in paragraph (2)(b) and has been unable to do so fully, it may instead -
(b) inform the hirer that it has taken all reasonably practicable steps to comply fully with those requirements and has been unable to do so; and (c) inform the hirer of the details of the steps that it has taken in order to try and comply fully with those requirements. (4) In this regulation "relative" has the same meaning as it is given in section 63 of the Family Law Act 1996[12]. Situations where more than one agency or employment business is involved 23. - (1) Neither an agency nor an employment business ("A") may enter into any contract or arrangement with another agency or employment business ("B") with a view to B providing or facilitating the provision to a work-seeker or a hirer of any services of an agency or an employment business unless -
(b) A and B have agreed in what capacity each of them will act, namely whether as an agency or an employment business; (c) where A is acting as an agency in relation to a work-seeker whom it is permitted by regulation 26(1) to charge for work-finding services, -
(ii) where A and B have agreed that B may receive any payment due to the work-seeker -
(bb) provided that the applicable law of the agreement between A and B does not prevent it, they have agreed that the work-seeker may enforce the term referred to in sub-paragraph (c)(ii)(aa) in the event that B fails to pass the monies to A or the work-seeker within the 10 day period referred to therein; and (d) the terms of the agreement reached between A and B in accordance with sub-paragraphs (b) and (c)(ii) are recorded in paper form or by electronic means. (2) Neither an agency nor an employment business ("A") may assign or sub-contract any of its obligations under any contract or arrangement with a work-seeker or hirer to another agency or employment business ("B") unless -
(b) the terms upon which those obligations are assigned or sub-contracted are recorded in a single document; and (c) A has given the work-seeker or hirer, for whom it acts, a copy of that document. Situations where work-seekers are provided with travel or required to live away from home
(b) the work-seeker has been provided with details of the accommodation referred to in sub-paragraph (a), including the terms on which it is offered and any cost to the work-seeker; and (c) suitable arrangements have been made for the work-seeker to travel to such accommodation. (4) Where a work-seeker is -
(b) the agency, employment business or hirer has arranged free travel or payment of fares for the work-seeker's journey to the place of work, the agency or employment business shall, if the work does not start or upon it ending, either arrange free travel for the work-seeker's return journey or pay his return fare, or obtain an undertaking from the hirer that he will arrange free travel or pay the return fare. The agency or employment business shall give notice to the work-seeker setting out the details of the free travel or payment of fares including any conditions on which the same are offered. Client accounts 25. - (1) In this regulation -
an agency receives money on behalf of a work-seeker when the agency or any person connected with it receives money directly or indirectly from a hirer or any person connected with a hirer pursuant to the terms of any contract or arrangement between the work-seeker and the hirer, whether or not the agency has agreed with the work-seeker or the hirer that it will receive such money on the work-seeker's behalf;
(b) the agency maintains one or more client accounts in accordance with Schedule 2. (3) An agency which directly or indirectly receives money on behalf of a work-seeker in contravention of paragraph (2) shall no later than the end of the second business day following the day on which the money is received pay such money or an equivalent sum to -
(b) an agency which is capable of receiving such money without contravening paragraph (2); or (c) the person from whom it was received. (4) All money received by an agency on behalf of a work-seeker, other than -
(b) cheques and banker's drafts, made out or as the case may be drawn in favour of the work-seeker; and (c) money dealt with in accordance with paragraph (3); shall be paid into a client account no later than the end of the second business day following the day on which the money is received.
(b) to what work done by the work-seeker it relates; and (c) any fees or other deductions made by the agency. (7) Subject to paragraph (8), all payments made by an agency to a work-seeker or into a client account shall (except to the extent of any amount required by law to be deducted) be made without deduction.
(b) the person from whom it was received. (17) Any hirer's deposit received by an agency shall be held by the agency as trustee for the hirer until such time as the money becomes payable to the work-seeker or the hirer in accordance with the terms of any contract between the work-seeker and the hirer.
(b) either -
(ii) the fee charged to the work-seeker amounts to no more than a reasonable estimate of the cost of production and circulation of the publication attributable to the inclusion of information about that work-seeker in the publication; and (c) in addition to the requirements in regulations 13, 14 and 16, in so far as they are applicable, the agency has, before it entered into the contract with the work-seeker by reference to which the fee is to be charged, made available to him a copy of a current edition of the publication (or, where the publication exists only in electronic form, given him access to a current edition of the publication) in which it is offering to include information about him. (6) The restrictions on charging fees to work-seekers contained in section 6(1)(a) of the Act shall not apply to any fee consisting of a charge to a work-seeker in respect of the purchase of or subscription for a publication containing information about employers provided that -
(b) the agency has made available to the work-seeker a copy of a current edition of the publication (or, where the publication exists only in electronic form, given him access to a current edition of the publication) in advance of the work-seeker purchasing or subscribing for it. (7) The restriction on charging fees to work-seekers contained in section 6(1)(a) of the Act shall not apply in respect of a fee charged by an agency for the service provided by it of finding or seeking to find a work-seeker employment where -
(b) the employment is in an occupation other than any of those occupations listed in Schedule 3. Advertisements 27. - (1) Every advertisement issued or caused to be issued by an agency or employment business shall mention in either audibly spoken words or easily legible characters the full name of the agency or employment business, and whether the services it advertises are those of an agency or an employment business, as the case may be. (2) Neither an agency nor an employment business may issue or cause to be issued an advertisement about positions which hirers seek to fill unless the agency or employment business has -
(b) in relation to each such position, the authority of the hirer concerned to find work-seekers for that position, or the authority of an agency or employment business, which has such authority to issue the advertisement or cause it to be issued. (3) An agency or employment business shall, in every advertisement for work-seekers issued or caused to be issued by it in which rates of pay are given, state the nature of the work, the location at which the work-seeker would be required to work, and the minimum experience, training or qualifications which the work-seeker would be required to have in order to receive those rates of pay.
(b) for the purposes of any legal proceedings (including arbitration); or (c) in the case of a work-seeker who is a member of a professional body, to the professional body of which he is a member. (2) Without prejudice to the generality of paragraph (1), an agency shall not disclose information relating to a work-seeker to any current employer of that work-seeker without that work-seeker's prior consent, which has not by the time of such disclosure been withdrawn, and shall not make the provision of any services to that work-seeker conditional upon such consent being given or not withdrawn.
(b) the particulars specified in Schedule 5, in relation to every application received by the agency or employment business from a hirer; and (c) the particulars specified in Schedule 6 relating to dealings with other agencies and employment businesses. (2) The records mentioned in paragraph (1) shall be kept for at least one year from the date of their creation, and in the case of the particulars referred to in sub-paragraphs (a) and (b) of paragraph (1), at least one year after the date on which the agency or employment business last provides services in the course of its business as an agency or an employment business to the applicant to whom they relate.
(b) any defence, which exists or may be available apart from the provisions of the Act and these Regulations, contravention of, or failure to comply with, any of the provisions of the Act or of these Regulations by an agency or employment business shall, so far as it causes damage, be actionable.
(b) the regulations mentioned below shall be modified as set out below in a case where the work-seeker is a company. (2) For regulation 5, substitute the following:
(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.". (3) For regulation 6(1), substitute the following:
(b) the person who is or will be supplied by the relevant work-seeker to carry out the work, on the ground that he has taken up or proposes to take up employment with any person other than the employment business or the relevant work-seeker.". (4) In regulation 15, for paragraph (f) there shall be substituted the following -
(5) In regulation 18(d), for the words "for a work-seeker" on each occasion on which they occur substitute the words "for a person supplied by the work-seeker to carry out the work".
(b) in paragraph (b), for the words "that the work-seeker" substitute the words "that the person who would be supplied by the work-seeker to carry out the work". (7) In regulations 20, 22, 24(9) and (10), 28 and Schedule 4 the references to "the work-seeker" shall include the person who would be supplied by the work-seeker to carry out the work.
(b) to give or send a document to a person; (c) to inform a person or provide a person with information; (d) to make enquiries and to receive answers, may only be satisfied by one of the means in paragraph (3).
(b) sending, transmitting or receiving the notice, document, information, enquiry, answer or consent by post, facsimile or by other electronic means to an address provided for that purpose by the intended recipient, provided that any information so given, sent or transmitted is in a form which is clearly legible by the intended recipient. Interpretation 1.In this Schedule -
(b) a work-seeker or a hirer; before the date on which these Regulations come into force;
Application to existing contracts
(b) the employment business has given such notice to the hirer (and has not withdrawn the same) at any time from the day on which these Regulations come into force but before the work-seeker concerned -
(ii) begins working for the hirer pursuant to being supplied by another employment business. (8) For the purposes of regulation 10(3), the references to "the contract" and "the hire period referred to in paragraph (1)" shall be read as references to the notice referred to in sub-paragraph (7) of this paragraph and the hire period specified in that notice, respectively.
(ii) regulation 7 of, and Schedule 2 to, the 1976 Regulations shall remain in force, during the transitional period. (3) Regulation 25 and Schedule 2 apply in respect of all relevant money held by an agency (other than an agency described in sub-paragraph (2)) with effect from the day these Regulations come into force, but where -
(b) the event giving rise to the requirement to take that action occurred before the day these Regulations come into force; that event shall be treated as having occurred on the day these Regulations come into force.
(b) the event giving rise to the requirement to take that action occurred before the end of the transitional period; that event shall be treated as having occurred on the first day after the end of the transitional period. Interpretation 1.In this Schedule unless the context otherwise requires - the expressions "accounts", "books", "ledgers" and "records" shall include loose-leaf books and such cards or other permanent documents or records as are necessary for the operation of any system of book-keeping, electronic, mechanical or otherwise and where an electronic system is operated, the information recorded on it must be capable of being reproduced in legible form;
(b) hirer's deposits; but shall not include money to which the only person entitled is the agency itself;
Maintenance of client accounts
(b) if the account contains money belonging to a single client, the name of that client. 3.An agency may pay into a client account -
(b) money to replace any sum which for any reason may have been drawn from the account in contravention of paragraph 7(2); and (c) money received by the agency which under paragraph 4(b) the agency is entitled to split but which the agency does not split. 4.An agency which holds or receives money which includes client's money -
(b) shall, if it does not split the money, pay it into a client account no later than the end of the second business day following the day on which it receives the money. 5.An agency shall not pay into a client account any money other than money it is required or permitted by regulation 25(4) and 25(14) or this Schedule to pay into a client account, and an agency into whose client account any money has been paid in contravention of this paragraph shall, no later than the end of the second business day following the day on which it discovers the same, withdraw it and pay it to the person to whom it belongs.
(ii) a payment to another person on the written request of the client provided that the agency has previously agreed with the client to make payment to that other person if the client so requests; (b) client's money properly required -
(ii) for or towards payment of the agency's fees due from the client; (iii) for or towards reimbursement of monies paid by the agency to the client representing the client's remuneration from employment with a hirer, where the agency has paid such remuneration to the client prior to receiving the same from the hirer (or any person connected to the hirer); where the client has agreed to such deduction in paper form or by electronic means and, in a case falling within sub-paragraph (b)(i) or (ii) the agency has delivered to the client an invoice or other written statement of the amount of the fee incurred or money expended; provided that in any case under sub-paragraph (a) or (b) of this paragraph the money so drawn shall not exceed the total of the money held for the time being in such account on account of such client.
(b) a transfer to an account at a credit institution in the name of the agency not being a client account. (2) No money other than money permitted by paragraph 6 to be drawn from a client account shall be so drawn.
(b) where a work-seeker becomes entitled, under the terms of any contract with a hirer, to receive any money paid to an agency by way of hirer's deposit. Accounts and records
(ii) any other money dealt with by it through a client account; (b)
(ii) to distinguish all money of the said categories received, held or paid by it, from any other money received, held or paid by it; and (c) to show the current balance of each client's account in the client's ledger or to enable this to be readily ascertained. (2)
(ii) in a clients' ledger or a clients' column of a ledger; and no other dealings shall be recorded in such account, ledger, or, as the case may be, in such columns. (3) In addition to the accounts, ledgers and records referred to in sub-paragraph (2) of this paragraph, every agency shall keep a record of and copies of all invoices and of all statements under paragraph 6(b) (distinguishing between fees and disbursements) delivered or made by the agency to its clients.
(ii) prepare a reconciliation statement showing the cause of the difference, if any, shown by the above comparison; (iii) reconcile the cash account balances with the balance shown on statements and passbooks of all client accounts, and money held elsewhere, showing the causes of any differences in the reconciliation; and (iv) take appropriate action to rectify any differences. Inspection and report
(ii) You may report that those requirements have been substantially complied with if in your opinion they have been complied with except so far as concerns trivial breaches due to clerical errors or mistakes in book-keeping, all of which were rectified on discovery, and none of which in your opinion resulted in any loss to a person entitled to client's money. (iii) If you report that in your opinion those requirements have not been complied with or substantially complied with, you must annex to your report a statement of the matters in respect of which, in your opinion, the requirements have not been complied with or substantially complied with. (iv) If you are unable to form an opinion as to whether or not the requirements have been complied with or substantially complied with, you must specify in your report the matters in respect of which you have been unable to satisfy yourself, and the reasons you have been unable to do so. (v) For the purpose of making your report under paragraph (i) above, I/we/this firm/the company undertake to provide you with particulars of all accounts maintained or operated at any credit institution by me/this firm/the company, in the course of my/our/its business as an employment agency during the period to which the report relates. (vi) Subject to paragraph (vii) below, you must examine my/this firm's/this company's accounts and records in order to enable you to verify whether they comply with the requirements of paragraph 9 of Schedule 2 to the Conduct Regulations, for which purpose you may request such further information and explanations as you may consider necessary, and I/we/the company undertake(s) to provide you with such information as you may request. (vii) nothing in paragraph (vi) above shall require you -
(b) to consider whether the accounts and records have been properly kept in accordance with paragraph 9 of Schedule 2 to the Conduct Regulations at any time other than during the period to which your report relates.". (3) An agency required to maintain a client account in accordance with regulation 25 and this Schedule shall keep displayed at each of its premises used for or in connection with the carrying on of an employment agency in such a position that it can be readily seen by persons resorting to those premises a copy (certified as a true copy by the reporting accountant) of the reporting accountant's most recent report, but not any statement annexed to it in accordance with paragraph (2)(iii) above.
(b) in the case of an agency which establishes a client account or accounts on or after the date on which these Regulations come into force, the period beginning with the date upon which the first such client account is established and ending with a date not more than twelve months from that date or if the agency is incorporated under the Companies Act 1985, the agency's accounting reference date whichever is the sooner. (3) Subject to sub-paragraph (4), subsequent accounting periods shall begin with the day immediately following the end of the agency's previous accounting period and end with a date not less than six months and not more than twelve months after that date.
(b) copies of all invoices and statements under paragraph 6(b) above as issued to clients, for at least six years from the date of such issue; (c) all statements as printed and issued by the credit institution with which the relevant client account is held, for at least six years from the date of receipt of each statement by the agency; (d) the records of all reconciliations required by paragraph 9 above, in each case for at least six years from the date upon which such reconciliation is produced; (e) all reports made to it by an accountant under paragraph 10 above, in each case for at least six years from the date upon which such report is delivered to the agency. (2) The records referred to in this paragraph may be kept either at the agency's relevant business premises or elsewhere, provided that if they are kept elsewhere, the agency shall ensure that they are readily accessible by it and that it is reasonably practicable for any person employed by the agency at any of its relevant business premises to arrange for them to be delivered to the relevant business premises at which that person is employed. Actor, musician, singer, dancer, or other performer; Composer, writer, artist, director, production manager, lighting cameraman, camera operator, make up artist, film editor, action arranger or co-ordinator, stunt arranger, costume or production designer, recording engineer, property master, film continuity person, sound mixer, photographer, stage manager, producer, choreographer, theatre designer; Photographic or fashion model; Professional sports person. 1.Date application received. 2.Work-seeker's name, address and, if under 22, date of birth. 3.Any terms which apply or will apply between the agency or employment business and the work-seeker, and any document recording any variation thereto. 4.Details of the work-seeker's training, experience, qualifications, and any authorisation to undertake particular work (and copies of any documentary evidence of the same obtained by the agency or employment business). 5.Details of any requirements specified by the work-seeker in relation to taking up employment. 6.Names of hirers to whom the work-seeker is introduced or supplied. 7.Details of any resulting engagement and date from which it takes effect. 8.Copy of any contract between the work-seeker and any hirer entered into by the agency on the work-seeker's behalf. 9.Date application withdrawn or contract terminated (where applicable). 10.In the case of an agency that is permitted to charge fees to work-seekers, dates of requests by the agency for fees from the work-seeker and of receipt of such fees, with copy statements or invoices, numbers and amounts; or, as appropriate, statements of dates and amounts of sums deducted from money received by the agency on the work-seeker's behalf in accordance with regulation 25, to the extent that these are not required to be comprised in records maintained in respect of a client account in accordance with paragraph 12 of Schedule 2. 11.Details of enquiries made under regulations 19, 20 and 22 about the work-seeker and the position concerned with copies of all relevant documents and dates they were received or sent as the case may be. 1.Date application received. 2.Hirer's name and address, and location of employment if different. 3.Details of the position(s) the hirer seeks to fill. 4.Duration or likely duration of work. 5.Experience, training, ability, qualifications, and authorisation required by the hirer, by law, or by any professional body; and any other conditions attaching to the position(s) the hirer seeks to fill. 6.The terms offered in respect of the position(s) the hirer seeks to fill. 7.Copy of the terms between the agency or employment business and the hirer, and any document recording any variation thereto. 8.Names of work-seekers introduced or supplied. 9.Details of enquiries under regulations 18 and 20 about the hirer and the position the hirer seeks to fill, with copies of all relevant documents and dates of their receipt. 10.Details of each resulting engagement and date from which it takes effect. 11.Dates of requests by the agency or employment business for fees or other payment from the hirer and of receipt of such fees or other payments, and copies of statements or invoices. 1.Names of any other agencies or employment businesses whose services the agency or employment business uses, and details of enquiries (and the answers thereto) under regulation 23(1)(a) as to that agency or employment business's suitability, with copies of all relevant documents and dates the enquiries were made and the answers received. 2.Date and copy of any agreement under regulation 23(1)(b). (This note is not part of the Regulations) These Regulations revoke the Conduct of Employment Agencies and Employment Businesses Regulations 1976, the Employment Agencies Act 1973 (Charging Fees to Workers) Regulations 1976 and the Employment Agencies Act 1973 (Charging Fees to Au Pairs) Regulations 1981. These Regulations make provision to secure the proper conduct of employment agencies and employment businesses and to protect the interests of persons using their services. The references in the footnotes of these Regulations to prospective amendments refer to the fact that these amendments have not yet been commenced. In particular, in relation to amendments of the Employment Agencies Act 1973 by the Employment Relations Act 1999 that have yet to be commenced, it is intended that, save in respect of the amendment to section 13(2) of the 1973 Act which will come into force 3 months later, they will come into force on the same date as the majority of these Regulations. The main new provisions to be introduced by the 2003 Conduct Regulations will be that: there will be limitations on the terms in contracts between employment businesses and hirers that prevent temporary workers from taking up permanent jobs with the hirer, or a company to which the hirer has introduced them, or being supplied by a different employment business, unless a fee is paid to the first employment business; employment businesses will be prohibited from withholding wages due to a temporary worker purely because the worker cannot produce an authenticated time sheet; agencies and employment businesses will be required to confirm the identity of the work-seekers and that they have the experience, training and qualifications that the hirer expects for that position; there will be an ongoing obligation on agencies and employment businesses to inform the hirer when they receive information about a worker, which indicates that the worker might be unsuitable for the position; agencies and employment businesses will also have to obtain information on any health and safety risks known to the hirer and the steps taken to prevent or control those risks; agencies and employment businesses will have to obtain references on work-seekers who are to work with vulnerable persons; agencies seeking to find work for actors, models and other entertainers will no longer be allowed to charge an up front fee before they find work for those work-seekers; subject to their opting out the scope of the Regulations will be extended to cover work-seekers who contract their services through their own limited company. It will no longer be a requirement for: agencies and employment businesses to disclose their status on business stationery; agencies and employment businesses to provide the Department with their current terms of business; agencies to ascertain if young persons have received vocational guidance before they find them work; agencies and employment businesses to obtain written statements from the services of a lawyer on the list of the British Consul before supplying or hiring a work-seeker to an overseas employer or to use the services of an overseas agent. Part I contains general provisions. Part II sets out general obligations governing both agencies and employment businesses. Part III contains requirements which agencies and employment businesses are required to satisfy before they supply any work-finding services to a work-seeker, such as notifying the work-seeker of any charges, and obtaining the work-seeker's agreement to basic terms governing the relationship between them. It also sets out details of the terms of agreement that agencies and employment businesses are required to reach with hirers. Part IV sets out the requirements to be satisfied, and information which has to be obtained and communicated, to both the work-seeker and hirer in relation to positions that a work-seeker may work in, or that a hirer seeks to fill. It provides for additional requirements where professional qualifications are required or where work-seekers may work with vulnerable persons. Part V deals with special situations where more than one agency or employment business is involved, and sets out extra steps which have to be taken where a work-seeker is required to travel or live away from home. Part VI sets out the requirements to be satisfied where agencies operate client accounts, and specifies in what situations fees may be charged to work-seekers. Part VII contains miscellaneous regulations dealing with advertisements, confidentiality and the application of the regulations to incorporated work-seekers. It also sets out what records agencies and employment businesses have to maintain, and makes provision for where requirements contained in the Regulations can be satisfied by electronic or other means. Schedule 1 contains transitional and saving provisions. Schedule 2 contains the requirements which must be fulfilled by agencies which operate client accounts. Schedule 3 lists the occupations in respect of which agencies may charge fees to work-seekers. Schedules 4, 5 and 6 set out the particulars which must be included in an agency's or an employment business's records. A Regulatory Impact Assessment of the estimated costs and benefits that these Regulations would have has been placed in the Libraries of both Houses of Parliament. Copies are available to the public from Employment Relations Directorate, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET and on the DTI website at www.dti.gov.uk. Notes: [1]1973 c. 35; section 12(5) as originally enacted was substituted by the Employment Relations Act 1999 (c.26), Schedule 7, paragraphs 1 and 6.back [2]Section 5(1) was amended by the Employment Relations Act 1999 (c.26), Schedule 7, paragraphs 1, 2(1) and (2). Section 6(1) as originally enacted was prospectively substituted by the Employment Relations Act 1999 (c.26), Schedule 7, paragraphs 1 and 3.back [3]Section 13(2) was prospectively amended by the Employment Relations Act 1999 (c.26), Schedule 7, paragraphs 1 and 7.back [4]1971 c. 80.back [5]1990 c. 42; section 201 was amended by the Broadcasting Act 1996 (c.42), Schedule 10, paragraph 11, and prospectively by the Communications Act 2003 (c.21), section 360(1)(a), (b) and (2).back [6]1985 c. 6; section 736 as originally enacted was substituted by the Companies Act 1989 (c.40), section 144(1).back [7]S.I. 1976/715.back [8]S.I. 1976/714.back [9]S.I. 1981/1481.back [10]1992 c. 52; section 237 was inserted by the Trade Union Reform and Employment Rights Act 1993 (c.19), section 49(2) and Schedule 8, paragraph 76, and amended by the Employment Rights Act 1996 (c.18), Schedule 1, paragraph 56(1), (15) and the Employment Relations Act 1999 (c.26), section 9 and Schedule 4, Part III, paragraphs 1, 2(a) and (b).back [11]1996 c. 18; Part I has been amended by the Employment Rights (Dispute Resolution) Act 1998 (c.8), section 1(2)(a), (b), the Employment Relations Act 1999 (c.26), section 32(3) and prospectively by the Employment Act 2002 (c.22), sections 35, 36, 37, 54 and Schedule 8.back [12]1996 c. 27; section 63 was prospectively amended by the Adoption and Children Act 2002 (c.38), Schedule 3, paragraphs 85, 88(a) and (b).back [13]1996 c. 18; section 230(6) was inserted by the Public Interest Disclosure Act 1998 (c.23), section 15(1).back [14]1933 c. 12; section 25 was amended by the Children and Young Persons Act 1963 (c.37), section 64(1), (3), Schedule 3, paragraph 7 and Schedule 5, the Children Act 1989 (c.41), Schedule 13, paragraph 3, the Employment Act 1989 (c.38), section 10 and Schedule 3, Part III, paragraphs 6 and 10 and the Children (Protection at Work) Regulations 1998 (S.I. 1998/276), regulation 5. Functions of the Secretary of State under section 25, so far as exercisable in relation to Wales, were transferred to the National Assembly for Wales, by the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672), article 2 and Schedule 1.back [15]1963 c. 37; section 42 was amended by the Employment Act 1989 (c.38), section 29(3) and Schedule 6, paragraph 8 and the Children (Protection at Work) Regulations 1998 (S.I. 1998/276), regulation 16(2) and (3).back [16]OJ No. L 126, 26.5.2000, p.1; article 1, point 1, first subparagraph as originally adopted was replaced by article 1, paragraph 1 of Directive 2000/28/EC of the European Parliament and of the Council amending Directive 2000/12/EC relating to the taking up and pursuit of the business of credit institutions (OJ No. L 275, 27.10.2000, p.37).back [17]Section 6(1) as originally enacted was prospectively substituted by the Employment Relations Act 1999 (c.26), Schedule 7, paragraphs 1 and 3.back [18]Section 9 was amended by the Employment Protection Act 1975 (c.71), sections 114, 125(3), Schedule 13, paragraph 6(1), (2), (3), Schedule 18, the Criminal Justice Act 1982 (c.48), sections 37, 38, 46, the Deregulation and Contracting Out Act 1994 (c.40), sections 35, 81, Schedule 10, paragraph 1(4), Schedule 17, and prospectively by the Employment Relations Act 1999 (c.26), section 44, Schedule 7, paragraphs 1, 4 and Schedule 9, Table 8.back [19]S.I. 1976/715.back [20]S.I. 1976/714.back [21]1985 c. 6; section 224 was inserted by the Companies Act 1989 (c.40), section 3 and amended by the Companies Act 1985 (Miscellaneous Accounting Amendments) Regulations 1996 (S.I. 1996/189), regulation 2(2), (3), (4) and the Companies Act 1989 (Commencement No. 4 and Transitional and Saving Provisions) Order 1990 (S.I. 1990/355), article 15.back [22]1985 c. 6; section 249D was inserted by the Companies Act 1985 (Audit Exemption) Regulations 1994 (S.I. 1994/1935), regulation 2 and amended by the Companies Act 1985 (Audit Exemption) (Amendment) Regulations 1995 (S.I. 1995/589), regulation 2, the Companies Act 1985 (Audit Exemption) (Amendment) Regulations 1996 (S.I. 1996/3080), regulation 2 and the Companies Act 1985 (Audit Exemption) (Amendment) Regulations 1997 (S.I. 1997/936), regulation 4.back ISBN0 11 048374 X -- Back--
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