ENFORCEMENT POLICY FOR THE EMPLOYMENT AGENCY INSPECTORATE

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ENFORCEMENT POLICY FOR THE
       EMPLOYMENT AGENCY
         INSPECTORATE

April 2012
CONTENTS                                                     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

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INTRODUCTION

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;

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•   ‘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.

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Targeting 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.

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Infringements 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.

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27.   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;

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•   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

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Annex 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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