ENFORCEMENT POLICY FOR THE EMPLOYMENT AGENCY INSPECTORATE
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ENFORCEMENT POLICY FOR THE
EMPLOYMENT AGENCY
INSPECTORATE
April 2012CONTENTS PAGE
INTRODUCTION 3
- Mission Statement
- Objectives
- Purpose of the Policy
- Legislation
EMPLOYMENT AGENCY INSPECTORATE 4
- Where we are
- Enforcement Powers
- Targeting Inspections
- What to expect from an inspection
- Infringements of the Legislation
COMPLAINT INVESTIGATION 6
- How to complain
- What happens when a complaint is made?
- Code of Conduct for Job Boards
CIVIL OR CRIMINAL PROCEEDINGS 8
- When might prosecution or prohibition be considered?
- Seriousness of the offence
PUBLICITY 9
OTHER LEGISLATION 9
GUIDANCE 9
USEFUL ADDRESSES Annex 1
2INTRODUCTION
Mission Statement
1. The mission of the Employment Agency Inspectorate (EAI) is to protect
workseekers and hirers who use the services of employment agencies
and employment businesses.
2. The main role of the EAI is to ensure compliance with legislation whilst
following Better Regulation principles. This approach ensures that
important protections are maintained for those people who use
employment agencies and businesses, without restricting the growth
potential of the recruitment sector.
Objectives
3. Our main functions are to:
Increase compliance with agency legislation . We aim to make our
enforcement of the legislation fair, proportionate, and targeted.
Raise awareness of ag ency legislation and the role of the EAI. There
are minimum standards that hirers and workseekers can expect from
agencies, and we want to ensure that agencies and users know what
these are.
Deliver better customer service through developing stronger ties. We
aim to provide a high level of customer service by working closely with
other workplace rights enforcement bodies, agency representatives, and
the voluntary and community sector. This will assist our Inspectors to be
fully aware of the issues affecting workseekers (especially the vulnerable)
and take appropriate action.
Purpose of this Policy
4. The purpose of this policy is to advise agencies what they can expect from
our Inspectors, from any inspection of their agency records, or from an
investigation of a complaint about them.
5. It also sets out how hirers and workseekers can enquire or complain about
agencies, and what they can expect from the EAI if they need to make an
enquiry or complaint.
6. For the purposes of this policy, the term:
• ‘agency’ describes the activities of both an employment agency and an
employment business;
• ‘agent’ is used to refer to the owner , director, operator or employee of
an agency;
3• ‘Department’ means the Department for Employment and Learning;
• ‘EAI’ means the Employment Agency Inspectorate; and
• ‘Inspector’ means an employment agency inspector within the
Department; and
• ‘work-seeker’ means any person engaging the services of an agency to
help them find work.
7. This policy should be read in conjunction with the Department’s
Employment Agency Inspectorate Service Standards guide.
Legislation
8. The relevant legislation is the Employment (Miscellaneous Provisions)
(Northern Ireland) Order 1981 ( “the 1981 Order ”) and the Conduct of
Employment Agencies and the Employment Businesses Regulations
(Northern Ireland) 2005 (“ the Conduct Regulations ”). The legislation sets
minimum standards of conduct covering areas such as fees, terms and
conditions, safeguarding of clients’ money, advertisements and record-
keeping.
THE EMPLOYMENT AGENCY INSPECTORATE
Where we are
9. The EAI is based within Employment Relations Division of the Department
for Employment and Learning on 1st Floor, Waterfront Plaza, 8 Laganbank Road,
Belfast BT1 3LR.
Full contact details are provided at the end of this document.
Enforcement Powers
10. The law permits Inspectors to enter and inspect premises, ask for agency
related records to be produced and, if necessary, remove those records
from the premises. Inspectors can produce warrant cards authorising
them to do so. Inspections or visits to agencies will in most cases be
carried out by prior arrangement and at a time that is suitable for the
agent. However, inspectors can attend premises unannounced. The
obstruction of any inspector carrying out their duties is an offence.
11. Information obtained by Inspectors will only be disclosed to other
enforcement agencies in specified ci rcumstances and in accordance with
legislation.
12. The EAI will co nsider prosecution and/or prohibition in the most serious
cases of non-compliance with the legislation. The response of the agent in
regard to any compliance or corrective advice will be a factor in
considering whether legal pr oceedings are appropriate. Further details on
this process are included under paragraphs 20 and 31.
4Targeting Inspections
13. The EAI will plan an annual programme of inspections based on an
ongoing identification and assessment of risks. These risks may be
sectoral, geographical, or historical (such as previous infringements).
Attention will be focused on:
• Complaints from hirers and work-seekers: these have priority over
inter-agency complaints;
• Agencies and businesses working in sectors with vulnerable adults
(e.g. nursing homes) and children;
• Agencies placing a high proportion of migrant workers;
• Breached regulations which afford the most protection to workseekers
and hirers;
• Agencies about which the EAI or other enforcement agencies hav e a
concern.
14. Agencies in breach of the legislation may receive a follow-up inspection,
which will normally take place 3-6 months following the first inspection.
15. The EAI may legally s hare information arising from an inspection with HM
Revenue and Customs (HMRC) National Minimum Wage compliance
officers and, in relevant cases, the Gangmasters Licensing Authority
(GLA). Joint inspections with other enforcement bodies may be
undertaken if a risk is identified which is of common interest.
What to expect from an inspection
16. In advance of an inspection, the agent will normally be asked to provide
samples of terms and conditions for wo rkseekers and hirers (if relevant).
During the inspection, the Inspectors will examine a selection of records
relating to workseekers and hirers which agencies must retain. These can
include records of placements, supporting evidence for vacancy
advertisements and, where appropriate, bank statements, timesheets and
payment records.
17. The EAI c an also request, with written notice, that a bank supply the
financial records of an agency, where the agent has not acceded to a
request to produce them.
18. Inspectors can request information, not only from an agency’s Directors,
Sole Traders and Managers but also from others (e.g. employees, third
parties) who may hold relevant records.
19. Any personal information collected in the course of an
inspection/investigation will be held by the Department in accordance with
the Data Protection Act 1998.
5Infringements of the Legislation
20. If infringements are found during the inspection, the agent will be advised
of this at the time. However, this will also be followed up by an
infringement letter within 10 working days of the inspection visit. The
agency will be asked to confirm in writing, the remedial action it intends to
take against each infringement identified. The agency may also be asked
to provide copies of newly up dated documentation. The agency will be
asked to provide this information within 4 working weeks of the date of
issue of the infringement letter.
21. In some cases, an inspector may need to seek further advice before
preparing an infringement letter. In such cases, a holding letter will be sent
to the agency.
22. When serious infringements are found, or there is a persistent lack of
response to infringements, civil or criminal proceedings may be
considered. In those cases, all circumstances will be taken into
consideration and the EAI’s response will be reasonable and
proportionate.
COMPLAINT INVESTIGATION
How to complain
23. Complaints may be made orally or in writing by anyone who is aggrieved
or dissatisfied with the manner in which an agency is operating. The
complainant will be encouraged to complete the EAI complaint form, as
this allows the capture of all necessary information to allow an
investigation to begin.
24. Complaints may be made by workers, hirers, other agencies, MLAs, trade
unions or employers’ associations, through articles in the press or
internally from other Government Departments. However, priority will be
given to complaints from workseekers.
What happens when a complaint is received?
25. The EAI will treat every complaint it receiv es in the strictest confidence.
Inspectors will establish whether complainants are willing for their details
to be disclosed during any investigation.
26. On receipt of a complaint, the EAI will acknowledge receipt within 5
working days. If the matter is one which cannot be dealt with under the
agency legislation, the complainant will be advised where best to direct
his/her complaint. If the complaint falls within the scope of the legislation,
the EAI will take investigative action as appropriate. There is no time limit
for concluding investigations.
627. A complaint investigation may necessitate a visit to, or inspection of, the
agency. In such cases, all of the processes outlined in relation to an
inspection may be employed.
28. The complainant will be updated regularly as the investigation progresses.
Investigations may, in some cases, take some time to conclude.
Code of Conduct for Job Boards
29. Complaints may be received from agencies about other agencies,
particularly in relation to advertising. The Department has had close
contact with the three main NI online job boards whic h advertise (mostly)
permanent posts, and we have agreed with them a Code of Conduct for
agencies placing advertisements on their sites.
30. The Code of Conduct provides for the online job board to be the first point
of contact for any complaints by other agencies. If an inter-agency
complaint is received about on-line advertising, it will be referred to the
relevant job board who will contact the agent concerned. If the agent
refuses to rectify the matter, the job board may decide to remove the
offending advertisement and may ultimately decide not to host an agent’s
advertisements in the future.
31. The EAI will only become involved in such issues when there is a
determined and consistent breaching of the regulations relating to
advertisements; where there are serious infringements of the legislation;
or where the agent does not cooperate with the job board. Each job board
hosts a specific complaints page to signpost workers and hirers to the
EAI‘s complaints process.
CRIMINAL OR CIVIL PROCEEDINGS AND PROHBITION
When might prosecution or prohibition be considered?
32. The Department may consider prosecuting individuals who seriously or
repeatedly breach the legislation. However, before doing so, the
Department will consider the following:
• the extent to which workseekers have been affected by the breach;
• whether workseekers have been subjected to deliberate and
determined abuse by the failure of the agency to comply with the law;
• the severity and degree of non-compliance;
• the benefit (financial or otherwise) to the offender arising from the
failure to comply;
• whether the agency has previously breached the legislation or has a
history of non-compliance;
• the impact of the offence on the industry; and
7• whether there is sufficient admissible and reliable evidence to provide
a realistic prospect of conviction.
33. The Department will also take into consideration any explanation or
statement provided by the agency indicating mitigating circumstances.
34. The Department may also apply to an Industrial Tribunal for a Prohibition
Notice to be made for up to a maximum of 10 years. A Prohibition Notice
will prevent a person from being involved in the running an agency, or will
impose certain conditions on their involvement in an agency . The
Department will make an application to an Industrial Tribunal where it
considers that an agent is unsuitable because of misconduct or any other
sufficient reason. Breach of a prohibition notice is a criminal offence.
Seriousness of the Offence
35. In the case of prosecutions, the case may be heard in a Magistrate’s
Court, where fines may be given up to £5,000 for each offence. For more
serious breaches, the case may be heard in the High Court where fines
are unlimited.
36. The EAI must adhere to the statutory time limits for the institution of
criminal proceedings under the 1981 Order. Complaints relating to an
offence under Article 7B(9)(a) or (b) ( obstruction etc) must be made within
6 months from the time when the offence was committed or ceased to
continue. Complaints relating to all other offences, as set out in Articles
5B, 6(3), 7(2), 7B(11) and 9(2), must be made within 3 years after the date
of the com mission of t he offence, and within 6 months after the date on
which evidence sufficient in the opinion of the Department to justify the
proceedings came to its knowledge.
PUBLICITY
37. The EAI maintains a list of individuals on the DEL webs ite who have been
prohibited from being involved in the running of an agency. The
Department will seek all available press and publicity opportunities to
highlight successful criminal proceedings or prohibition applications
against agents, for the purpose of raising awareness amongst agencies
and their users as to the possible consequences of determined or
consistent breaching of the regulations.
OTHER RELEVANT LEGISLATION
38. Other legislation applying to agencies and agency workers are:
• The Working Time Regulations (Northern Ireland) 1998 (WTR) cover
holiday pay and hours of work;
8• The Agency Workers Regulations (NI) 2011 (AWR) provide for equal
treatment rights for agency workers
39. Although agency workers are covered by the WTR and the AWR, it is not
EAI’s role to enforce these regulations. If agency workers are not
receiving their entitlements under the WTR or the AWR, they will be
referred to the Labour Relations Agency (LRA), or their local Citizens
Advice Bureau (CAB) (see Annex 1 for details).
40. Agency workers are also covered by the provisions of the National
Minimum Wage (NMW) legislation, and complaints can be referred to the
Pay and Work Rights Helpline, the LRA or the loca l CAB (see Annex 1 for
details). In the case of alleged breaches of any other employment rights
legislation in relation to, for example, part time workers, equality issues or
health and safety, complainants should be referred to the LRA or CAB in
the first instance.
GUIDANCE
41. Guidance on the Conduct Regulations can be found at NI Direct by
following the link at www.nidirect.gov.uk
9Annex 1
USEFUL ADDRESSES
Employment Agency Inspectorate (EAI)
First Floor Waterfront Plaza
8 Laganbank Road
Belfast
BT1 3LR
E-mail: eai@delni.gov.uk
Tel: 028 90 257554
Labour Relations Agency
Head Office
2-16 Gordon Street
BELFAST
BT1 2LG
E-mail: info@lra.org.uk
Tel: 028 9032 1442
Fax: 028 9033 0827
Northern Ireland Association of Labour Relations Agency
Citizens Advice Bureaux
Regional Office Regional Office
46 Donegall Pass 1-3 Guildhall Street
BELFAST LONDONDERRY
BT7 1BS BT42 6BB
E-mail: info@citizensadvice.co.uk E-mail: nfo@lra.org.uk
Tel: 028 9023 1120 Tel: 028 7126 9639
Fax: 028 9023 6522 Fax: 028 7126 7729
Gangmaters Licensing Authority
Pay and Work Rights Helpline PO Box 8538
Tel: 0800 917 2368 NOTTINGHAM
Text phone: 0800 121 4042 NG8 9AF
On-line enquiry form E-mail: enquiries@gla.gsi.gov.uk
Tel: 0845 602 5020
https://payandworkrights.direct.gov.uk/
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