Legislating without reason – the government’s plans for employment agencies

17 November 2014

By Sonia McKay, Professor of European Socio-Legal Studies at London Metropolitan University.

The Coalition government plans to change the law covering employment agencies, despite offering no evidence that such changes are necessary. For a government that consistently promotes de-regulation in the field of employment, proposing more regulation sends out warning signs and means that it is worth scrutinising their plans and reflecting on what their real intentions are ¹
. The regulations, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2014, which come into force next month, require employment agencies in the UK always to advertise jobs here and in English. The regulations state that employment agencies:

‘Must not advertise a GB vacancy in an EEA state other than the UK unless

(a) It advertises the vacancy in English in Great Britain at the same time as it advertises the vacancy in the other EEA state; or

(b) It has advertised the vacancy in English in Great Britain in the period of 28 days ending with the day on which it advertises the vacancy in the other EEA state.’

The provisions will not apply where it is believed ‘on reasonable grounds’ that advertising the vacancy in English in Great Britain would be ‘disproportionate’ thus providing scope for legal challenges. It is only employment agencies that are covered; employers hiring directly will be able to advertise however they see fit, provided that they do not offend against discrimination law. The government says that its aims are to create ‘a level playing field for workers in Britain’ and that the regulations ‘will improve equality in the labour market and will also expand the range of potential applicants that businesses can choose from’. Statements like this might lead to a conclusion that the changes will open up to UK workers a large number of jobs from which, until now they have been excluded, but its own consultation provided no such evidence. Business representatives responding to the consultation make it clear that the proposed regulations would not, in their view, lead to additional job opportunities.

The consultation, which ran from July to September 2014 elicited just 31 responses, with nearly half coming from individuals (6) or micro businesses (7) and produced no evidence of UK workers being excluded, beyond a reference to ‘anecdotal’ examples, about which no further information is provided. Furthermore, as the government itself admits, there is no need for new legislation as UK residents being excluded from jobs would amount to ‘a breach of the Equality Act’ 2010. In attempting to provide an ’evidence base’ the government starts by stating that some agencies may be advertising solely outside GB before going on to alter the inconclusive ‘may’ into an absolute statement that refers to ‘this barrier imposed on British residents’. In other words it moves from indicating there could be a problem for which there is no evidence, to then stating that this problem is operating as a barrier to jobs for UK residents. And while accepting that it has little evidence, it remarkably goes on to state that it would not be ‘realistic’ to expect any more evidence to come to light if there was to be a further investigation. In other words the government is saying that it has no evidence and knows that even if it tried it would not find any. Indeed the Labour Force Survey data, cited by the government in its evidence paper, shows that nine in ten agency jobs are held by UK nationals. The truth is that in those cases where UK workers are not applying for agency jobs it is because the terms offered are so poor that only those with no other options (such as recently arrived migrants) would take them.

But of course the truth is that the government does not believe that there is a problem and there is no better proof than in its own impact statement which states that the costs to business of the new regulations would be minimal, simply because they will have little or no impact on existing practices. It comes clean stating ‘we expect there to be very few recruitment firms placing adverts exclusively overseas’ and ‘the number of jobs affected is likely to be a very small proportion of the total number of British jobs being advertised at any point in time’. Thus whatever the regulations are aimed at doing, they will not, even on the government’s own admission, provide jobs for workers resident here. The unfortunate reality is that it is not job creation that is at issue but rather a feeble attempt to garner support by utilising a racist discourse. The target is not unemployment, but represents a posturing alongside UKIP, in an attempt to show that the Coalition is also opposed to migrants. This is a government slavishly pursuing a discredited policy of blaming migrants for the problems imposed on workers by the economic crisis. Evidence for this is in the fact the call for such regulation came about in the course of a debate around the Immigration Bill 2013 (now the 2014 Act) which introduced a raft of new measures aimed at excluding migrants without documents, not just from work, but from accommodation and from health care. Therefore its origin, regardless of what the Coalition government now states, is not in the context of improving conditions of employment in any form or of creating decent jobs.

But why should evidence get in the way of a good ‘we are tough on migrants’ story.

^{1. [For the background documents and the text of the regulations see: https://www.gov.uk/government/consultations/recruitment-sector-prohibiting-the-advertising-of-jobs-exclusively-in-other-eea-countries]↩}