Ban on overseas only recruitment
New provisions came in to force on 5 January 2015 to implement a ban on what is known as “overseas only” recruitment practices by employment agencies/businesses.
In a measure to level the playing field for workers in Great Britain, a “GB vacancy” can no longer be advertised in an EEA state other than the United Kingdom, unless:
- the vacancy is advertised in English in Great Britain at the same time as it is advertised in the other EEA state; or
- the vacancy has been advertised in English in Great Britain in the period of 28 days ending with the day on which the vacancy is advertised in the other EEA state.
A “GB vacancy” has been defined as “a vacant position the duties of which are ordinarily to be performed in Great Britain”. The restriction does not apply to vacant positions where the employment agency/business is acting for themselves as the employer and the ban only applies to employment agencies/businesses operating in Great Britain.
Breach of this prohibition will constitute a criminal offence and may also give rise to an action in damages. In addition to this, the Secretary of State may apply to the Employment Tribunal for an order prohibiting a person (including a company) from carrying on or being concerned with an employment agency/business for up to ten years.
A defence against enforcement action will be available, if the employment agency/business can show that they reasonably believed that the chances of an application being made by a person, who has the skills required to fill the GB vacancy, is so low that it would be disproportionate to advertise it in English in Great Britain as well as in another EEA state.
The effectiveness of the restriction has been criticised as there is nothing to stop hirers based in Great Britain from using agencies based in another EEA state to advertise a position.
For more information, contact Gurpreet Sanghera.