New consultation on amendments to Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the “Conduct Regulations”)

On 13 October 2015, the government launched a new consultation with a view to de-regulating the Conduct Regulations. The coalition government had previously consulted on re-writing the legislation impacting on recruitment agencies and employment businesses. However, the government is now proposing simply to reduce some of the administrative burden imposed on recruiters under the Conduct Regulations but at the same time to make it harder to recruit overseas workers into jobs in Great Britain.

The key changes proposed are as follows:

• Recruitment agencies would be obliged to advertise in Great Britain each time they engage in recruitment activities in other EEA countries, with a view to seeking to fill the vacancy with a candidate who is already living in Great Britain. This means that, unless they have already advertised the role in Great Britain, a recruitment agency would not be able to fill vacancies using candidates based in other EEA counties who are already registered with the recruitment agency. A recruitment agency will be able to defend claims for breach of the Conduct Regulations if it can show that it reasonably believed that advertising the vacancy in English in Great Britain would be disproportionate, having regard to the likelihood that this would result in no applications from anyone with the necessary skills. It is difficult to envisage a situation in which a recruitment agency would be able to rely on this defence;
• The requirement on employment businesses to enter into a written agreement with the hirer before starting work, will be removed. However, it may still be prudent to seek to agree written terms in advance with the client, to avoid potential disputes;
• Recruitment agencies will no longer be required to include certain information when advertising for candidates; and
• The prohibition on misleading candidates and hirers as to the status of the employment business or recruitment agency will be removed. Likewise, the restrictions on a recruitment agency around ensuring that any other recruitment agency or employment business they deal with is suitable to act, will be removed.

The consultation is open until 23 November 2015. The government’s response to the consultation is expected to be published by 15 February 2016.Separately, the government is also consulting on establishing a new Director of Labour Market Enforcement, which will be tasked with tackling the exploitation of workers. This is mainly in response to criminal gangs and issues around slave labour, but we do not yet as know what impact (if any) this will have on the enforcement of regulations on employment businesses and recruitment agencies. It is likely that, at least at the outset, the Director will be focussed on more extreme cases of labour exploitation.