Advertisement of GB vacancies: is there a need for regulation?

On 2 September 2014 BIS concluded a consultation on a proposal to amend the Conduct of Employment Agencies and Employment Businesses Regulations 2003 to prohibit employment businesses and employment agencies from advertising jobs exclusively in other EEA countries. This consultation is separate to wider proposed reforms to the 2003 legislation, about which the government has said there will be a further consultation this Autumn. The proposal would require all employment agencies and employment businesses to advertise “GB vacancies” (defined as “a position the duties of which are ordinarily to be performed in Great Britain”) in Great Britain and in English before or at the same time as they are advertised in other EEA countries, in order to “ensure a level playing-field for UK-based workers”.

BIS recognises that in some situations it may be justifiable for a recruiter to advertise a vacancy solely in another EEA country. The regulation will therefore include a defence so that it will not affect recruitment arrangements that comply with the Equality Act 2010 (which prevents discrimination against job-seekers because of nationality). Justification would be considered on a case-by-case basis.

The Regulatory Policy Committee last month gave the proposal a red rating. It criticised the government’s impact assessment on the proposal as “not fit for purpose”, and said it needs to be strengthened with “a robust evidence base”. The Committee suggested that BIS needs to “(i) set out a clearer rationale for intervention; (ii) assess a wider range of policy options for prohibiting overseas-only recruitment, including alternatives to legislation; and (iii) provide a fuller description of the impacts of the regulation on employment agencies, including on small and micro businesses”.

It is indeed unclear as to why this measure has been proposed. BIS itself concedes that there is little evidence that recruitment businesses currently advertise solely in other EEA countries for GB vacancies. BIS also anticipates that this regulation would not affect the majority of recruitment businesses as vacancies tend to be advertised on websites which are accessible Europe-wide. Further, BIS’ own impact assessment suggests that overseas-only recruitment may already be in breach of the Equality Act 2010. The government has given no evidence of any particular uncertainty in the interpretation of the provisions of the Equality Act that would support the need for further legislation, and so, at best, the proposal “makes certain a requirement that may potentially have already existed under the Equality Act”. The results of the consultation are expected at the beginning of December 2014. Given that the requirement for regulation on this issue is questionable, it may be that this is one proposal that quietly falls by the wayside as the government gears up for next year’s general election.

For more information, please contact Jennifer Millins

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