Unit 3-2: Understanding the Legal and Ethical Requirements in Recruitment Parts 1 & 2

Question 1

Name the main types of employment status?

Answer 1

1. Worker
2. Employee
3. Self-employed
4. Contractor

Question 2

Name some of the characteristics that help identify ‘worker’ status?

Answer 2

1. A contract or other agreement exists (does not have to be written and is not a Contract of Employment).
2. Reward for money or benefit-in-kind.
3. Cannot sub-contract the work.
4. The employer is not a ‘client’.
5. No mutuality of obligation exists.

Question 3

Name rights that a ‘worker’ is entitled to?

Answer 3

1. NMW
2. Protection against unlawful deductions.
3. Statutory minimum paid holiday.
4. Statutory rest breaks.
5. Protection against unlawful harrassment or discrimination.
6. Statutory sickness pay.
7. Statutory maternity / paternity pay.
8. Written statement of employment particulars - Key Information Document.

Question 4

Name rights that are unavailable to workers?

Answer 4

1. Minimum notice at the end of a contract.
2. Protection against unfair dismissal.
3. Right to request flexibile working.
4. Paid time off for emergencies.
5. Stat redundancy pay.

Question 5

Can an individual be an employee under a zero-hour contract?
Give an example.

Answer 5

Yes. Where an employer may choose to provide a certain amount of hours on a non-contractual basis OR not specify hours in the contract.

BUT people working under zero-hour contracts are more likely to be ‘workers’ in employment law.

Question 6

How would a court or tribunal ascertain whether an individual is a ‘worker’ or ‘employee’ under a zero hour contract?

Answer 6

Assess all of the terms in a contract with what has happened in reality.

The largest identifying characteristic is a mutuality of obligation.

Question 7

Identify instances that may indicate ‘worker’ status under a zero hour contract

Answer 7

• There is no mutuality of obligation.
• The contract uses the words ‘casual’, ‘zero hours’, ‘casual’ or similar phrases.
• Under direction, supervision or control of a person.
• The organisation deducts tax and NI contributions.
• Provided with materials, tools and equipment by the organisation.
• They have to supply their labour personally not via proxy.

Question 8

What is ‘employee’ status and what does this mean for an individual?

Answer 8

• Someone who works under a contract of employment.
• Employees have additional rights and obligations.

Question 9

What additional rights does an ‘employee’ have over a ‘worker’?

Answer 9

• Minimum notice periods.
• Protection against unfair dismissal.
• Right to request flexible working hours.
• Time off for emergencies.
• Statutory redundancy pay.

Question 10

Give some examples of how one would identify employment status?

Answer 10

• Use of words like ‘employee’ and ‘employer’.
• They are required to work regularly unless on authorised leave.
• Required to work a minimum number of hours.
• They are managed or supervised.
• They receive a minimum of 28 days holiday.
• The contract sets out redundancy procedures.
• They only work for that organisation.

Question 11

What is a self-employed person?

Answer 11

Contracts to provide labour directly under a contract for services.

Question 12

What is a contractor?

Answer 12

Works through their own Limited Company or as an employee of an Umbrella Company.

Question 13

How can ‘contractor’ or ‘self-employed’ status be ascertained?

Answer 13

• They quote or tender for work.
• Work specific projects.
• No direct supervision.
• Can hire someone to do the work on their behalf.
• Are respnsible for their own tax and NI.
• No holiday or sick pay.
• Have to remedy unsatisfactory work in their own time.
• Provide services to a number of different clients or customers.
• Operate under a ‘contract for services’ or ‘consultancy agreement’

Question 14

In the context of an employment business, what is a ‘status determination’?

Answer 14

It is a written statement that is produced following an IR35 assessment by an end client (end-hirer).

Question 15

In the context of an employment business, why is a ‘status determination’ important?

Answer 15

It will inform the employment business what the tax status of the assignment is.

Question 16

Name the Class categories of National Insurance Contributions?

Answer 16

1. Class 1- employed
2. Class 2 - self-employed

Question 17

Name the RTI submissions required by HMRC?

Answer 17

• Full Payment Submission: every time it pays an employee.
• Employer Payment Submission: when an employer needs to recoup statutory payments that have been made i.e. sick pay.
• Earlier Year Update: when an employer needs to correct data already submitted

Question 18

What does ITEPA set out in the context of intermediaries?

Answer 18

1. Any temporary worker paid through an intermediary will be deemed employed unless they can demonstrate that the individual is under no direction, supervision or control.
2. An intermediary (employment business) to report on all workers supplied to a client where those workers are not accounted for in their RTI reports.

Question 19

How does ITEPA apply to Offshore Employment Intermediaries?

Answer 19

1. There should be no advantage to a UK agency supplying a UK-based worker to a UK-based client via an offshore intermediary.
2. Where a temporary worker works through an overseas intermediary, it is the reponsibility of the UK-based agency to deduct NICs unless it can be demonstrated that the overseas entity is deducting appropriate sums.

Question 20

1.2 Duties, rights and responsibilities of employers and employees

Name the parts of the written statement of employment?

Employment Rights Act 1996

Answer 20

1. Principal statement: on the 1st day of employment.
2. Wider written statement: within 2 months.

Question 21

1.2 Duties, rights and responsibilities of employers and employees

Name some items that should be included on the principle statement:

Employment Rights Act 1996

Answer 21

1. Employers name.
2. Job title, description of work and start date.
3. How much and how often the worker gets paid.
4. Hours and days of work.
5. Holiday entitlement.
6. Location of work.
7. If fixed term, the end date.
8. Probationary period and conditions.
9. Benefits
10. Obligatory training and if paid or not?
11. Start date of previous job if a promotion.

Question 22

1.2 Duties, rights and responsibilities of employers and employees

What other information must the employer give on day one?

Employment Rights Act 1996

Answer 22

• Sick pay and procedures.
• Other paid leave
• Notice periods

Question 23

1.2 Duties, rights and responsibilities of employers and employees

What should the ‘wider written statement’ consist of?

Employment Rights Act 1996

Answer 23

1. Pensions and pensions schemes.
2. Collective agreements.
3. Rights to non-compulsory training.
4. Disciplinary and grievance procedures.

Question 24

1.2 Duties, rights and responsibilities of employers and employees

Provide some examples of how a contract of employment could be established?

Employment Rights Act 1996

Answer 24

• A written document
• Verbally
• Custom and practice
• An employee handbook or noticeboard
• Collective agreements
• Implied by law

Question 25

1.2 Duties, rights and responsibilities of employers and employees

What does IR35 set out to achieve?

IR35

Answer 25

Identify the employment status of an individual.

Question 26

1.2 Duties, rights and responsibilities of employers and employees

How is an employee’s status determined under IR35?

IR35

Answer 26

Those working under “supervision, direction and control” are almost always employees.

Question 27

1.2 Duties, rights and responsibilities of employers and employees

What are the IR35 exemptions?

IR35

Answer 27

1. The company has no UK entity; or
2. The company is a small company with a
   * T/O less than £10.2m;
   * Balance sheet assets of less than £5.1m;
   * Fewer than 50 employees.

Question 28

1.2 Duties, rights and responsibilities of employers and employees

What is supervision?

IR35

Answer 28

• Oversight
• Quality
• Includes training

Question 29

1.2 Duties, rights and responsibilities of employers and employees

What is direction?

IR35

Answer 29

Conduct the work under instruction, guidance or advice.

Question 30

1.2 Duties, rights and responsibilities of employers and employees

What is control?

IR35

Answer 30

Subject to the control of another as to how and in what order the work is done.

Question 31

1.3 Organisational procedures and docs relating to contractual issues

What is a policy?

Policies, procedures and documentation

Answer 31

A set of principles that set out an organisations view and direction on a matter.

Question 32

1.3 Organisational procedures and docs relating to contractual issues

What is a procedure?

Policies, procedures and documentation

Answer 32

A step-by-step process of how an organisation implements and follows a policy or operation.

Question 33

1.3 Organisational procedures and docs relating to contractual issues

Give examples of what form a procedure may be communicated in?

Policies, procedures and documentation

Answer 33

• Flowcharts
• Checklists
• Written steps

Question 34

1.3 Organisational procedures and docs relating to contractual issues

Why is it important to have policies and procedures in place?

Policies, procedures and documentation

Answer 34

To create standard operating procedures and consistent standards

Question 35

1.3 Organisational procedures and docs relating to contractual issues

Name some policies that should be in place to prevent any contractual issues?

Policies, procedures and documentation

Answer 35

• Equality and diversity
• Data protection
• Grievance
• Information security
• Social media
• Disciplinary
• Training and development
• Customer service
• Use of company property

Question 36

1.3 Organisational procedures and docs relating to contractual issues

Name some more policies that should be in place to prevent any contractual issues?

Policies, procedures and documentation

Answer 36

• Health and safety
• Whistleblowing
• Bullying and harrassment
• Smoking, alcohol and substance abuse
• Environmental
• Maternity and paternity
• Company car
• Mobile phone and driving
• Complaints
• Anti-bribary

Question 37

1.3 Organisational procedures and docs relating to contractual issues

How are policies and procedures inextricably linked?

Policies, procedures and documentation

Answer 37

A policy sets the standards and a procedure describes how to implement and adhere to those standards.

Question 38

1.3 Organisational procedures and docs relating to contractual issues

What sort of claims do Employment Tribunals hear?

Employment Tribunals

Answer 38

• Unfair dismissal & redundancy
• Disputes relating to T&C’s
• Discrimination
• Unpaid wages and unlawful deductions
• Equal pay
• Employment statutory rights
• Some H&S matters

Question 39

1.3 Organisational procedures and docs relating to contractual issues

What time limits do you have for making an ET claim?

Employment Tribunals

Answer 39

3 months minus 1 day from which the claim arose.

Question 40

1.4 Sources of info and advice on employment righst and responsibilities

Names some sources of information relating to employment rights and responsibilities?

Answer 40

1. Advisory Conciliation and Arbitration Service (ACAS)
2. Equalities and Human Rights Commission (EHRC)
3. Citizens Advice Bureu (CAB)
4. The Government (gov.uk)
5. Health and Safety Executive (HSE)
6. Information Commissioners Office (ICO)
7. HMRC
8. Department for Work and Pensions (DWP)
9. Department for Business, Energy and Industrial Strategy (BEIS)

Question 41

1.5 Organisational Orinciples and Codes of Practice

Why is it important to adhere to organisational principles and codes of practice?

Answer 41

To demonstrate commitment to working in a professional and ethical manner directly linked to the values of the business.

Question 42

1.5 Organisational Principles and Codes of Practice

How are an organisations principles and codes of practice kept effective?

Answer 42

• Reviewed and updated regularly.
• Kept accessible.
• Communicated.
• Referred to by management and staff.

Question 43

2.1 Features and Scope of the Recruitment Compliance Cycle

What is an Employment Agency?

Employment Agencies Act 1973 (EEA) / Employment Conduct Regulations 2003 (the ‘Conduct Regulations’)

Answer 43

Finds candidates on behalf of their clients to be directly engaged by the client - permanent recruiter.

Question 44

2.1 Features and Scope of the Recruitment Compliance Cycle

What is an Employment Business?

Employment Agencies Act 1973 (EEA) / Employment Conduct Regulations 2003 (the ‘Conduct Regulations’)

Answer 44

Supplies candidates to their clients on temporary or fixed term contracts; but the candidate remains employed by the Employment Business.

Question 45

2.1 Features and Scope of the Recruitment Compliance Cycle

Outline the stages of the compliance cycle?

Employment Agencies Act 1973 (EEA) / Employment Conduct Regulations 2003 (the ‘Conduct Regulations’)

Answer 45

1. Attract work-seekers
2. Charging work-seekers (if applicable)
3. Registration
4. Terms of Business
5. Taking job details
6. Assignments
7. Inform hirer of work-seekers information
8. Post placement

Question 46

2.1 Features and Scope of the Recruitment Compliance Cycle

Describe the requirements which must be adhered to when advertising a job position:

Attracting work-seekers

Answer 46

• Full name of the business/agency.
• If containing details, it must contain all details.
• Permission from the hirer to advertise.
• If containing rates of pay - include nature of work, minimum experience, training and qualifications.

Question 47

2.1 Features and Scope of the Recruitment Compliance Cycle

Describe the rules relating to advertising EEA countries for a GB vacancy:

Attracting work-seekers

Answer 47

• Duties of which are performed in GB.
• Must be advertised in GB at the same time or 28 days before advertising in EEA.
• A criminal offence and may have to pay compensation.
• Investigated by Employment Agency Standards Inspectorate.
• Defence: unlikely to attract the correct skills in GB.

Question 48

2.1 Features and Scope of the Recruitment Compliance Cycle

Describe a situation in which charging for work-finding services is allowed:

Charging work-seekers

Answer 48

• Unlawful unless:
• Artists and sports professionals.
• 7 day cooling off period applies.

Question 49

2.1 Features and Scope of the Recruitment Compliance Cycle

What conditions must be met in order to charge a work-seeker for other services?

Charging work-seekers

Answer 49

• The amount or calculation of a fee;
• To whom the fee will be payable;
• A description of the service;
• Refund or rebate policy;
• Cancellation policy;
• Cancellation must be no more than 5 days or 10 days if accomodation is provided.

Question 50

2.1 Features and Scope of the Recruitment Compliance Cycle

Can a work-seeker be charged for PPE?

Charging work-seekers

Answer 50

• An employee must not be charged for PPE.
• Lack of clarity with regard to an Employment Business.
• Employment Business must not make work conditional on buying PPE directly.
• Gangmasters cannot charge for PPE but can charge for unreturned PPE (if known of).
• Deduction should not decrease pay below NMW.

Question 51

2.1 Features and Scope of the Recruitment Compliance Cycle

What terms must be agreed in writing between an employment business and a work-seeker?

Registration: Terms of Engagement

Answer 51

• A statement that the Employment Business will act as an Employment Business;
• The type of work sought;
• Whether a contract of service (employment contract) OR a contract for services;
• Relevant terms;
• Security of payment;
• Notice periods;
• Rate of pay or minimal rate of pay expected;
• Paid holiday

Question 52

2.1 Features and Scope of the Recruitment Compliance Cycle

How should variations to Terms of Engagement be managed?

Registration: Terms of Engagement

Answer 52

• Agreed with the work-seeker;
• Confirmed in writing no later than 5 working days;
• Clearly stating when the variation commences.

Question 53

2.1 Features and Scope of the Recruitment Compliance Cycle

Before supplying or introducing a work-seeker, what must an Employment Business do?

Registration: Confirmation of details

Answer 53

• Confirm the candidate’s identity;
• Right-to-work;
• Experience, training and qualifications required by law or professional body.
• No detriment to the safety of the work-seeker or hirer.

Question 54

2.1 Features and Scope of the Recruitment Compliance Cycle

Before supplying or introducing a work-seeker to a position where candidate will work with vulnerable people, what must an Employment Business do?

Registration: Vulnerable person

Answer 54

• Confirm the candidate’s identity;
• Obtain copies of relevant qualifications;
• Obtained two references (non-relatives;)
• Must be agreed that the reference can be disclosed to the hirer.
• All other reasonably practical steps to confirm the worker is suitable i.e. Disclosure and Barring Service.
• The hirer must be informed of said steps.

Question 55

2.1 Features and Scope of the Recruitment Compliance Cycle

Define ‘Vulnerable Person’

Registration: Vulnerable person

Answer 55

• Any person by reason of age, infirmity, illness, dissability or any other circumstance, is in need of care.
• Includes persons under the age of 18.

Question 56

2.1 Features and Scope of the Recruitment Compliance Cycle

Who does the Conduct Regulations apply to? And who can opt-out?

Terms of Business: Conduct Regs: Opt out

Answer 56

• Everyone by default;
• Limited company contractors can opt out;
• Not permitted to opt out if working with vulnerable people.

Question 57

2.1 Features and Scope of the Recruitment Compliance Cycle

What are the consequences of Conduct Regulation opt-out?

Terms of Business: Conduct Regs: Opt out

Answer 57

• The Employment Business will not be bound by the Conduct Regs.
• The hirer must be informed.
• Different ToB’s will be required between EB and work-seeker.

Question 58

2.1 Features and Scope of the Recruitment Compliance Cycle

Describe the terms that an employment business must agree with a hirer before providing services?

Terms of Business

Answer 58

• A statement that the employment business will act as such;
• Details of the fee or calculation of the fee;
• Details of any refunds or rebate;
• Procedure if the work-seeker proves unsatisfactory.

Question 59

2.1 Features and Scope of the Recruitment Compliance Cycle

How and when should ToB’s be provided to a hirer?

Terms of Business

Answer 59

• As soon as reasonably practicable;
• Confirmed by signature; or
• Via email;
• Records kept evidencing that ToB’s were sent;
• Any variations confirmed in writing;
• Confirmation of when the variations will be effective.

Question 60

2.1 Features and Scope of the Recruitment Compliance Cycle

What does the Regulation 10 of the Conduct Regs seek to prevent?

Terms of Business: Transfer Fees

Answer 60

Employment Businesses from discouraging or preventing hirers from hiring work-seekers directly.

Question 61

2.1 Features and Scope of the Recruitment Compliance Cycle

What must an employment business do in order to charge a fee to the hirer under Regulation 10 of the Conduct Regs?

Terms of Business: Transfer Fees

Answer 61

EB’s terms must provide the option of:
* Paying a transfer fee; or
* Take the worker on for an agreed minimum of hire (extended period of hire), after giving notice.
* On the same or better terms.
* On completion of (EPH), the worker transfers at no extra cost.
* Clauses must be drafted correctly.

Question 62

2.1 Features and Scope of the Recruitment Compliance Cycle

How does a transfer take place under Regulation 10 of the Conduct Regs?

Terms of Business: Transfer Fees

Answer 62

• On the same or better terms.
• On completion of the extended hire period (EHP), the worker transfers at no extra cost.

Question 63

2.1 Features and Scope of the Recruitment Compliance Cycle

What happens in the instance of a dispute over Regulation 10 of the Conduct Regs?

Terms of Business: Transfer Fees

Answer 63

• A court will rule on the reasonableness of the fee or the hire period.
• Unreasonable fees or EPH’s will be deemed unenforceable.
• There are no statutory restrictions on fees or EPH’s.

Question 64

2.1 Features and Scope of the Recruitment Compliance Cycle

In the context of the Regulation 10 of the Conduct Regs, what is the ‘relevant period’?

Terms of Business: Transfer Fees

Answer 64

• Transfer fees are only applicable within the ‘relevant period’
• 8 weeks following the last day of the assignment; or
• 14 weeks from the beginning of the assignment; whichever is later;
• The first day is either the start of the first assignment, or the first day of a second assignment following a 42 day break.

Question 65

2.1 Features and Scope of the Recruitment Compliance Cycle

What information should be provided to a work-seeker by an EA or EB under the Conduct Regs?

Compliance cylcle: Information provided to work-seeker

Answer 65

• Identity;
• Start date and duration;
• Type, location and hours of work;
• H&S risks;
• Experience, training, qualifications considered necessary by law and professional bodies;
• Any expenses payable by or to the work-seeker;
• Minimum rate of pay, benefits, intervals of payment;
• Notice periods.

Question 66

2.1 Features and Scope of the Recruitment Compliance Cycle

When should a Key Information Document be provided?

Compliance cylcle: Information provided to work-seeker

Answer 66

Before obtaining the work-seekers agreement to the Terms of Engagment.

Question 67

2.1 Features and Scope of the Recruitment Compliance Cycle

What does a Key Information Document look like?

Compliance cylcle: Information provided to work-seeker

Answer 67

• Contains the title ‘Key Information Document’;
• Statements to clarify the statutory entitlements of the worker.
• Written in a clear and succinct manner;
• Max 2 sides of A4;
• Easy to read.

Question 68

2.1 Features and Scope of the Recruitment Compliance Cycle

What information should a KID contain?

Compliance cylcle: Information provided to work-seeker

Answer 68

1. The relationship between work-seeker and EB;
2. Relevant contact details;
3. Contractual nature;
4. Identity of the EB;
5. Identity of the organisation that will pay the work-seeker;
6. The rate and intervals of remuneration;
7. Fees and deductions applicable;
8. Non-monetary benefits;
9. Holiday entitlement;
10. Gross and net remuneration.

Question 69

2.1 Features and Scope of the Recruitment Compliance Cycle

What should an EA or EB check in relation to any specific or legal requirements of the assignment?

Compliance cylcle: Information provided to work-seeker

Answer 69

That the worker is aware of any specific or legal requirements required i.e. nursing qualifications

Question 70

2.1 Features and Scope of the Recruitment Compliance Cycle

What should an EA or EB check in relation to detrimental affects of the assignment?

Compliance cylcle: Information provided to work-seeker

Answer 70

That the assignment would pose no detrimental affects to the work-seeker or hirer.

Question 71

2.1 Features and Scope of the Recruitment Compliance Cycle

With regard to accomodation, what are the EB’s responsibilities?

Compliance cylcle: Information provided to work-seeker

Answer 71

Take reasonably practicable steps to ensure that:
* Suitable accomodation is available;
* Suitable travel arrangements have been made;
* Details of the accomodation and cost (if payable) have been communicated.

Question 72

2.1 Features and Scope of the Recruitment Compliance Cycle

With regard to free travel, what are the EB’s responsibilities?

Compliance cylcle: Information provided to work-seeker

Answer 72

Where free travel has been arranged, ensure that:
* Free return travel has also been arranged; or
* Pay the return fare

Question 73

2.1 Features and Scope of the Recruitment Compliance Cycle

With regard to private domestic service assignments, what are the EB’s responsibilities?

Compliance cylcle: Information provided to work-seeker

Answer 73

• To provide as much information about the assignment as possible;
• Including living arrangemnts and facilities;
• Not allow the au-pair to bare the cost of travel to-and-from the assignment location.

Question 74

2.1 Features and Scope of the Recruitment Compliance Cycle

With regard to assignments involving working with vulnerable people, what are the EA and EB’s responsibilities?

Compliance cylcle: Passing work-seeker info to the hirer

Answer 74

• Identify the work seeker;
• Ascertain experience, training and qualifications required by law or professional bodies;
• Willingness of the work-seeker;
• Explain the contractual nature;
• DBS checks;
• Right-to-work checks.

Question 75

2.1 Features and Scope of the Recruitment Compliance Cycle

In relation to EAA and the Conduct Regulations, what records must be kept in relation to work-seekers?

Compliance cylcle: Post-placement: Record Keeping

Answer 75

• Date of application;
• Name, address and DOB (if under 22)
• Terms of Engagement and variations;
• Training, experience & qualifications;
• Specific requirements of the work-seeker;
• Name of hirers (introduced or supplied);
• Copies of contracts;
• Dates of application withdrawal or contract termination.
• Fees charged (if applicable);
• Details of reference checks.

Question 76

2.1 Features and Scope of the Recruitment Compliance Cycle

In relation to EAA and the Conduct Regulations, how long must records must be kept for in relation to work-seekers and hirers?

Compliance cylcle: Post-placement: Record Keeping

Answer 76

• One year after creation; or
• One year following the EA or EB last provided its services.
• No records required if no action has been taken with work-seeker (work-seeker only).

Question 77

2.1 Features and Scope of the Recruitment Compliance Cycle

In relation to EAA and the Conduct Regulations, what records must be kept in relation to hirers?

Compliance cylcle: Post-placement: Record Keeping

Answer 77

• Date application is received;
• Hirer’s name, location & address;
• Detail of the position;
• Duration of assignment;
• Training, qualifications, experience, authorisation required by law or professional body;
• Any other conditions required by the employer;
• Names of work-seekers supplied or introduced;
• Details of enquiries about the hirer;
• Details of engagements and dates;
• Dates of payments.

Question 78

2.1 Features and Scope of the Recruitment Compliance Cycle

In relation to payment, what are the responsibilities and restrictions placed on the EB?

Compliance cylcle: Post-placement: Payment

Answer 78

• Pay the work-seeker for work completed;
• Irrespective of whether the EB has been paid;
• In the case of a time-sheet discrepancy, the EB can delay payment;
• Does not apply if a valid ‘opt-out’ has taken place.

Question 79

2.1 Features and Scope of the Recruitment Compliance Cycle

In order for a transfer fee to be enforceable between an EB and a hirer, what must exist in the EB’s Terms of Business?

Compliance cylcle: Post-placement: Reg 10 Conduct Regs

Answer 79

An option for the hirer to either:
* Pay a transfer fee; or
* Hire the work-seeker for an agreed minimum period of hire (MPH);
* Supplied on the same or better terms;
* Within the relevant period;
* 8 weeks from last day of hire; or
* 14 weeks from first day; which is
* Beginning of first assignment or the beginning of a 2nd assignment if a break of more than 42 days.

Question 80

2.1 Features and Scope of the Recruitment Compliance Cycle

In the case of an introduction of a work-seeker to a hirer, but no immediate supply has taken place, but takes place at a later date, on what grounds can an EB request a fee?

Compliance cylcle: Post-placement: Transfer Fees

Answer 80

If the EB has provided within its terms the option to have the WS supplied to the hirer for a specified period, after which the WS will transfer at no extra cost.

If opting for the specified period, then the EB must supply the WS for the entirety opf that period , unless unable, through no fault of their own.

Question 81

2.1 Features and Scope of the Recruitment Compliance Cycle

In relation to temp-to-third party introductions, in what circumstances can a transfer fee be paid?

Compliance cylcle: Post-placement: Transfer Fees

Answer 81

• If specified in the EB’s terms;
• Transfer takes place in the ‘relevant period’;
• No option of extended period of hire necessary;
• No restriction on the calculation of the fee.

Question 82

2.1 Features and Scope of the Recruitment Compliance Cycle

If within 3 months of introduction, an EA or EB that finds out that a permanent candidate is unsuitable for placement?

Compliance cylcle: Post-placement: Worker suitability

Answer 82

• Tell the hirer without dealy, on the same day or next business day.
• If information is not sufficient or not certain enough, further enquries should be made, and the hirer kept informed.

Question 83

2.1 Features and Scope of the Recruitment Compliance Cycle

If an EA or EB that finds out that a temporary candidate is unsuitable for placement within an assignment, what is the responsibility of the EB or EA?

Compliance cylcle: Post-placement: Worker suitability

Answer 83

• Inform the hirer without delay and end the assignment;
• If information is not sufficient or not certain enough, further enquries should be made, and the hirer kept informed.

Question 84

2.1 Features and Scope of the Recruitment Compliance Cycle

Why is it imporatant that the accuracy of information relating to the unsuitability of a candidate is verified?

Compliance cylcle: Post-placement: Worker suitability

Answer 84

If untrue, false information could give rise to damages for defamination.

Question 85

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose of the Equality and Human Rights Comission and what are their powers?

Equality and Human Rights Comission (EHRC)

Answer 85

• Reduce inequality and discrimination.
• Protect, enforce and promote equality across the 9 protected characteristics;

Question 86

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the Department for Business, Energy and Industrial Strategy?

Department for Business, Energy and Industrial Strategy (BEIS)

Answer 86

• Facilitate business success;
• Regulatory reform;
• Responsible for productivity, business relations, energy, competition and consumers.

Question 87

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the HMRC?

His Majesty’s Revenue and Customs (HMRC)

Answer 87

• Tax collection and financial support;
• Advice on tax, wage deductions & statutory benefits.
• Investigative, enforcement & prosecutionary powers.

Question 88

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the GLAA?

The Gangmasters and Labour Abuse Authority (GLAA)

Answer 88

• Protect vulnerable and exploited workers across applicable sectors;
• Agriculture, horticulture, shellfish gathering, food & drinks processing and packaging.
• Inspection, enforcement and licence revocation.

Question 89

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the DWP?

The Department for Work & Pensions (DWP)

Answer 89

• Welfare and pension policy;
• Promoting work through job centres etc;
• Social justice;
• Enabling the disabled through work.
• Investigative and prosecution powers.

Question 90

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the EAS?

The Employment Agency Standards (EAS) inspectorate

Answer 90

• Enforces the Employment Agencies Act and the Conduct Regulations;
• Inspection, enforcement and prosecution.
• Provides (anyone) the right to bring a civil lawsuit if damage has occurred as a result of a breach.

Question 91

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the ICO?

Information Commissioner’s Office (ICO)

Answer 91

• Uphold information rights, promote openess by public bodies and data privacy;
• Oversight of the Data Protection Act, Privacy and Electronic Communications Regs and General Data Processing Regs.
• Audits of data controllers.
• Issue fines

Question 92

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the HSE?

The Health and Safety Executive (HSE)

Answer 92

• Watchdog for work-related health, safety and illness;
• Produce detailed guidance on H&S legislation, rights and responsibilities, relevant risk assessments;
• Advice.
• Investigative, enforcement, prosecutionary.

Question 93

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the DBS?

The Disclosure and Barring Service (DBS)

Answer 93

• Criminal record checks;
• Maintain the Update Service.
• Barring and individual from working with children or vulnerable adults.

Question 94

2.2 Roles and powers of legislative orgs; their impact on rec practices

What is the purpose and powers of the TPR?

The Pensions Regulator (TPR)

Answer 94

• Protect members of occupational and private pension schemes;
• Promote understanding of pension schemes;
• Reduce risk in pension schemes;
• Maximise employer compliance of the Pensions Act.
• Preventative, investigative, educational, remedial and penile.

Question 95

2.3 The practical application of recruitment-related legislation

In relation to the decisions of whether to select or reject someone for a position, what would amount to discrimination?

Equality Act 2010

Answer 95

Where a person is treated differently to others based on certain characteristics covered by the Equality Act 2010

Question 96

2.3 The practical application of recruitment-related legislation

What are the 9 protected characteristics?

Equality Act 2010

Answer 96

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion or belief
8. Sex
9. Sexual orientation

Question 97

2.3 The practical application of recruitment-related legislation

How is a claim for discimination brought?

Equality Act 2010

Answer 97

It must be specific discrimination defined as one of the four key forms of discrimination regarding one of the nine protected characteristics.

It is not a crime to offend someone, you must be shown to have treated the individual differently.

Question 98

2.3 The practical application of recruitment-related legislation

Name the four forms (claims) of discrimination:

Equality Act 2010

Answer 98

1. Direct
2. Indirect
3. Victimisation
4. Harrassment

Question 99

2.3 The practical application of recruitment-related legislation

Define direct discrimination?

Equality Act 2010

Answer 99

Treat an individual differently on the grounds of any of the 9 characteristics.

Question 100

2.3 The practical application of recruitment-related legislation

What is perceptive direct discrimination?

Equality Act 2010

Answer 100

The discriminator perceives an individual to possess a protected characteristic.

Question 101

2.3 The practical application of recruitment-related legislation

What is associative direct discrimination?

Equality Act 2010

Answer 101

An individual discriminates due to an association to someone with a protected characteristic.

Question 102

2.3 The practical application of recruitment-related legislation

Define indirect discrimination?

Equality Act 2010

Answer 102

Individual (or organisation) applies a provision, criteria or characteristic that disadvantages an individual with a protected characteristic.

Question 103

2.3 The practical application of recruitment-related legislation

Define victimisation?

Equality Act 2010

Answer 103

• To treat another differently because they have made a complaint; or
• Supported somone who has made a complaint or they are suspected of doing so.
• Not supported if they have malicously made or supported a complaint.

Question 104

2.3 The practical application of recruitment-related legislation

Define harrassment?

Equality Act 2010

Answer 104

• Violating another’s dignity; or
• Creates a hostile, intimidating, degrading, humiliating or offensive environment.

Question 105

2.3 The practical application of recruitment-related legislation

Must harrassment be direct?

Equality Act 2010

Answer 105

• Employees can complain of behaviour that is not directed at them specifically;
• Complainants need not possess the protected characteristic themselves;
• Employees are protected from perceived and associative harrassment.

Question 106

2.3 The practical application of recruitment-related legislation

In what circumstances can it be justifiable to discriminate under the Equality Act?

Equality Act 2010

Answer 106

• If it can be shown to be an occupational requirement;
• A proportionate means of achieving a legitimate business aim;
• Applicable aross all 9 characteristics;
• Applicable in recruitment, access to training, promotion, transfers, benefits, facilities, services and dismissals.

Question 107

2.3 The practical application of recruitment-related legislation

Name some areas that occupational requirements may be justifiable to discriminate under the Equality Act?

Equality Act 2010

Answer 107

• Dramatic performances;
• Modelling;
• Personal welfare services;
• Preserve decency or privacy.

Question 108

2.3 The practical application of recruitment-related legislation

Define Positive Action?

Equality Act 2010

Answer 108

Criteria applied by an employer to encourage participation from groups with a disadvantaged background or a track record of low participation.

Question 109

2.3 The practical application of recruitment-related legislation

How does the Equality Act treat Positive Action?

Equality Act 2010

Answer 109

• Allows an employer to direct training towards and encourage applications from under represented groups.
• Allows favourable treatment if it is reasonably foreseeable that people with a protected characteristic would be disadvantaged in a recruitment process.
• Must not be used to facilitate a discriminatory recruitment process.

Question 110

2.3 The practical application of recruitment-related legislation

In relation to Positive Action, what safeguards are there to protect people from being unjustly discriminated against?

Equality Act 2010

Answer 110

• Candidates must be of equal skills, potential and work experience;
• As qualified, not identical qualifications.
• Must not be routine favourable treatment of all under-represented groups.
• Must be a proportionate means of minimising disadvantage suffered because of a particular characteristic.

Question 111

2.3 The practical application of recruitment-related legislation

With regard to disability, what is the scope of the Equality Act?

Equality Act 2010

Answer 111

• Not to be unjustifiably discriminated against as a result of their disability; and
• To have reasonable adjustment made to allow for recruitment and work.
• Looking for, in-work and disabled through work;
• Including temporary workers and contractors.

Question 112

2.3 The practical application of recruitment-related legislation

Define disability:

Equality Act 2010

Answer 112

‘Physical or mental impairment that has a substantial and long-term adverse affect on a person’s ability to carry out normal day-to-day activities’

Question 113

2.3 The practical application of recruitment-related legislation

Explain the Social Model of Disability:

Equality Act 2010

Answer 113

Looks at how a person with a disability can be enabled; it encourages the removal of barriers within society, or reduction of their effects.

Question 114

2.3 The practical application of recruitment-related legislation

In what circumstances is it justifiable to ask health or disability related questions in pre-employment questionnaires?

Equality Act 2010

Answer 114

• To assess capability of undergoing an assessment;
• Consider adjustments for an individual to interview or work on an equal footing with other work-seekers;
• To assess the ability to undertake an intrinsic work function;
• Monitor diversity;
• Enable positive action;
• If it is an occupational requirement;
• If the info was wrongly used to determine suitability, this could be discrimination.

Question 115

2.3 The practical application of recruitment-related legislation

What is the purpose and in what areas of the work process does making ‘reasonable adjustments’ apply to?

Equality Act 2010

Answer 115

• To find or continue to work;
• Recruitment/selection;
• Contractual arrangements; and
• Working conditions.

Question 116

2.3 The practical application of recruitment-related legislation

Provide some examples of ‘reasonable adjustments’

Equality Act 2010

Answer 116

• Modifying the application/selection process;
• Modifying role;
• Modifying work equipment;
• Changing work hours;
• Changing place of work;
• Additional training;
• Time off for rehab or assessment.

Question 117

2.3 The practical application of recruitment-related legislation

What must an EA or EB do prior to the passing of information about a persons dissability?

Equality and the Data Protection Act

Answer 117

Under the Data Protection Act 1998, the EA and EB must ask the permission of the candidate.

Question 118

2.3 The practical application of recruitment-related legislation

In the context of the Equality Act and reasonable adjustments, provide some considerations in the assessment of ‘reasonableness’?

Equality Act 2010

Answer 118

• Assessed objectively after consulatation:
• Effectiveness of preventing the disadvantage;
• Practicality;
• Financial and other costs;
• The workers value;
• The nature and size of the employer.

Question 119

2.3 The practical application of recruitment-related legislation

In relation to age discrimination, provide some examples where age limits do still apply?

Equality Act 2010

Answer 119

• Minimum wage limits;
• Working Time Regs;
• Health and safety in relation to young workers (working with certain types of equipment).

Question 120

2.3 The practical application of recruitment-related legislation

In the context of the Equality Act, what is the most effective tool against discrimination for an EA or EB?

Equality Act 2010

Answer 120

• Understand the precise skills, knowledge and attributes a specific role requires;
• Base any recruitment decision on these criteria alone.

Question 121

2.3 The practical application of recruitment-related legislation

What should an EA or EB do should a hirer ask them to discriminate on their behalf?

Equality Act 2010

Answer 121

• Challenge the hirer on their Occupational Requirement defence;
• Remind hirer of yours and their legal obligations;
• Refer to your policy on fairness in recruitment, selection, equality and diversity;
• Forward details of ALL candidates whose skills, knowledge and experience matches the hirer’s criteria;
• Keep a record of all conversations, actions, activities and candidates put forward;

Question 122

2.3 The practical application of recruitment-related legislation

In the context of discrimination provide some examples of questions to avoid asking work-seekers?

Equality Act 2010

Answer 122

• Any questions that suggest discriminatory assumptions such as marital status or cultural background;
• Asking non-white work-seekers for work permit status; all work-seekers should be asked;
• Questions about time-off for purposes that touch on protected characteristics;
• Direct questions specific to any protected characteristic.

Question 123

What is the purpose of the Rehabilitation of Offenders Act 1974?

The Rehabilitation of Offenders Act 1974 (ROA)

Answer 123

To remove barriers for people returning to work after being convicted of a crimninal offence.

Question 124

How does the Rehabilitation of Offenders Act 1974 assist work-seekers returning to work after receiving a criminal conviction?

The Rehabilitation of Offenders Act 1974 (ROA)

Answer 124

It is unlawful to refuse employment to anyone who has a ‘spent’ conviction or has refused to disclose a spent conviction.

Question 125

What is a ‘spent’ conviction and how does a conviction become spent?

The Rehabilitation of Offenders Act 1974 (ROA)

Answer 125

A spent conviction is a criminal conviction that is not requires to be disclosed due to the type of conviction and the time that has elapsed since it occurred.

Question 126

Explain the circumstance in which sentences can never be spent:

The Rehabilitation of Offenders Act 1974 (ROA)

Answer 126

• An imprisonment of 4 years or more;
• Certain occupations including.

Question 127

What occupations are exempt from the rule of non-disclosure of spent convictions

The Rehabilitation of Offenders Act 1974 (ROA)

Answer 127

• Lawyers;
• Accountants;
• Care for elderly, sick or disabled;
• Care, education and control of young people;
• Medical practitioners;
• Dentists;
• Opticians;
• Pharmacists;
• Judicial and crown appointments

Question 128

What procedures should be used when hiring for an occupation considered to be exempt from the ROA?

The Rehabilitation of Offenders Act 1974 (ROA)

Answer 128

• Application forms should clearly state that the occupation is an exception to the rule;
• That ALL convictions, including those that are spent, should be listed.
• Carry out a DBS check.

Question 129

How can an organisation access the DBS?

Disclosure and Barring Service

Answer 129

• Register their organisation;
• Use an organisation that is registered with the DBS.

Question 130

How should an application form phrase a question regarding criminal convictions?

Disclosure and Barring Service

Answer 130

“Do you have any unspent criminal convictions? Yes/No;
If yes, please give details”

Question 131

In the context of diversity, what considerations should be made when placing advertisements?

Diversity

Answer 131

• Where to place the ad?
• Who is the target audience?
• Who is being excluded?
• What phraseology and imagery are being used?
• Does the language show bias?

Question 132

In the context of diversity, what considerations should be made when placing person specifications?

Diversity

Answer 132

• Make it competency based;
• Do not ask for quals and experience that cannot be objectively justified;
• Use a merit rating;
• Avoid using references to protected characteristics;
• Remove CVs and bio-data from the decision-making process.

Question 133

In the context of diversity, what considerations should be made when producing application forms?

Diversity

Answer 133

• Do not ask for personal information related to the 9 protected characteristics unless their is a legitimate occupational requirement; save as to ascertain whether reasonable adjustments are required.

Question 134

In the context of diversity, what considerations should be made when interviewing?

Diversity

Answer 134

• Advise hirers on interview techniques and best best practices;
• Ensure you and your hirer are comitted to equal opportunities;
• Ask job related questions only;
• Avoid stereotypes, prejudices and assumptions.

Question 135

In the context of diversity, what considerations should be made considering working conditions?

Diversity

Answer 135

Whether jobs could be performed using:
* Flexible working time;
* working from home;
* Part-time/job share.

Question 136

What is the main purpose of the AWR?

Agency Worker Regulations 2010 (AWR)

Answer 136

Ensure appropriate protectiona and equal treatment of temporary agency workers.

Question 137

How does the AWR achieve protection and equality of agency workers’ rights?

Agency Worker Regulations 2010 (AWR)

Answer 137

Provides them with the same basic terms of employment and working conditions (beyond any statutory rights) as if they had been directly engaged by the hirer to do the same job.

Question 138

Under AWR, what rights are available to the worker on day 1?

Agency Worker Regulations 2010 (AWR)

Answer 138

• Access to the canteen, childcare and transport facilities;
• Access to information on permanent job vacancies with the hirer.

Question 139

Under AWR, what rights are available to the worker after week 12?

Agency Worker Regulations 2010 (AWR)

Answer 139

• Pay including bonus, commission and over-time;
• Duration of working time;
• Night work;
• Rest breaks;
• Rest periods;
• Annual leave
• Paid time off for antenatal.

Entitlements with qualifying periods start from day 1.

Question 140

What is a comparable worker?

Agency Worker Regulations 2010 (AWR)

Answer 140

• Doing the same or broadly similar work;
• Working in the same or another location owned by the hirer;
• If there is no comparable worker, there is no entitlement to equal treatment.

Entitlements with qualifying periods start from day 1.

Question 141

What are the obligations of the hirer under AWR?

Agency Worker Regulations 2010 (AWR)

Answer 141

• Provide the EB with up-to-date employment T&C’s;
• Ensure access to facilities from day 1;
• Ensure access to job vacancies from day 1.

Entitlements with qualifying periods start from day 1.

Question 142

What are the obligations of the EB under AWR?

Agency Worker Regulations 2010 (AWR)

Answer 142

• Ask the hirer for info on pay and basic working conditions, particularly where the assignment could last in excess of 12 weeks.

Entitlements with qualifying periods start from day 1.

Question 143

Who does the AWR apply to?

Agency Worker Regulations 2010 (AWR)

Answer 143

• Individuals who meet the definition of “agency worker”, including PAYE workers and some Ltd Co contractors (anyone inside IR35)
• EB’s, umbrella company providers, master vendors;
• Hirers.

Entitlements with qualifying periods start from day 1.

Question 144

Who will decide on whether AWR apply in the case of a debate?

Agency Worker Regulations 2010 (AWR)

Answer 144

An Employment Tribunal will assess whether the description of the arrangements match what is happening in reality/practice.

Entitlements with qualifying periods start from day 1.

Question 145

How are qualifying periods calculated?

Agency Worker Regulations 2010 (AWR)

Answer 145

• 12 weeks regardless of how many hours per week;
• Regardless of which EB is supplying the worker or if this changes during the 12 weeks;
• Possibly with more than one hirer at one time;
• Certain breaks may not stop the qualifying clock from running.

Entitlements with qualifying periods start from day 1.

Question 146

Provide examples of when qualifying clock will be paused but not return to zero:

Agency Worker Regulations 2010 (AWR)

Answer 146

• No more than six weeks;
• No more than 28 weeks if the worker is sick or injured;
• Entitled break such as annual leave;
• 28 weeks for jury service;
• Regular and planned shutdowns;
• Caused by strike, lock out or other industrial action.

Entitlements with qualifying periods start from day 1.

Question 147

Provide examples of when qualifying clock will continue to tick and not be paused:

Agency Worker Regulations 2010 (AWR)

Answer 147

• Pregnancy, childbirth or maternity related leave during pregnancy and up to 26 wks after;
• Maternity , adoption or paternity leave.

Entitlements with qualifying periods start from day 1.

Question 148

Provide some examples of breaks that return the qualifying clock to zero:

Agency Worker Regulations 2010 (AWR)

Answer 148

• An absence of more than 6 wks;
• The worker takes on a substantively different role with the same hirer within the qualifying period.

Entitlements with qualifying periods start from day 1.

Question 149

How would one establish equal treatment?

Agency Worker Regulations 2010 (AWR)

Answer 149

• The same basic working and employemnt conditions that are ordinarily in the contracts of employees or workers of the hirer;
• If no ‘basic working and employment conditions’ these can be inferred.

Question 150

What are the possible consequence of avoidance of AWR qualifying periods?

Agency Worker Regulations 2010 (AWR)

Answer 150

If a tribunal believe that assignments have been deliberately structured to deprive an agency worker, the worker may be compensated up to £5000.

Question 151

What does the PA seek to achieve?

Pensions Act 2008 - Workplace Pension Reforms

Answer 151

Automatically enrol an employee or worker into a pension scheme.

Question 152

What are the duties of an employer under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 152

• Automatically enrol an employee or worker into a pension scheme;
• Manage opt-outs;
• Facilitate opt-in (non-eligible jobholders choice or every 3 years for opt-outs);
• Contibute to the scheme;
• Provide information to different categories of worker.

Question 153

What are the different categories of worker under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 153

• Eligible jobholders;
• Non-eligible jobholders;
• Entitled workers.

Question 154

What are eligible jobholders under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 154

• Aged between 22 and State Pension Age;
• Earn over the threshold;
• Ordinarily work in the UK;
• Have a contract of employment or contract to provide work/services personally.

Question 155

What are the employers duties to non-eligible jobholders under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 155

• Not required to automatically enroll;
• But must do so if the worker wishes to opt-in.

Question 156

What are the first category of non-eligible jobholders under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 156

• Aged between 16-21; or
• Between State Pension Age and 74;
• Earn over the threshold;
• Have a contract of employment or contract to provide work/services personally.

Question 157

What are the second category of non-eligible jobholders under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 157

• Aged between 16-74;
• Earn between the lower earnings amount and the earnings threshold; and
• Have a contract of employment or contract to provide work/services personally.

Question 158

What are the employers duties to non-eligible jobholders under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 158

• Not required to automatically enroll;
• But must do so if the worker wishes to opt-in.

Question 159

What are entitled workers under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 159

• Aged between 16-74;
• Earn less than the lower earnings amount;
• Have a contract of employment or contract to provide work/services personally.

Question 160

What are the employers duties to entitled workers under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 160

• Must arrange access to a pension scheme if the worker asks;
• This does not have to be a qualifying scheme;
• The employer is not required to make a contribution.

Question 161

What are the contributions to be made under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 161

• Employer 3%;
• Jobholder 5%;
• Either party can pay more.

Question 162

How are the contributions calculated under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 162

• Salary / Wages;
• Commission;
• Bonuses;
• Overtime;
• Sick pay;
• Maternity / paternity / adoption pay.

Question 163

How are the contributions calculated under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 163

• Salary / Wages;
• Commission;
• Bonuses;
• Overtime;
• Sick pay;
• Maternity / paternity / adoption pay.

Question 164

Is it possible to belong to more than one pension under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 164

• Yes;
• Jobholders may be able to combine them at a later date.

Question 165

What safeguards exist under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 165

• Employers must not encourage a jobholder to opt out of a scheme;
• Employers or recruiters must not imply that a candidates success will depend on them opting out opf a scheme.

Question 166

What penalties exist under the PA?

Pensions Act 2008 - Workplace Pension Reforms

Answer 166

The Pension Regulator can issue penalties:
* Non-compliance of a stat notice: £400;
* Escalated penalty of £50 - £10,000 per day dependant on the size of the organisation;
* Civil Penalties for failure to pay are up to £5,000 for individuals and £50,000 for organisations;
* Prohibited Recruitment Conduct Penalty Notice: £1,000 - £5,000;
* Criminal proceedings.

Question 167

What is the purpose of the HSWA?

Health and Safety at Work Act 1974 (HSWA)

Answer 167

Imposes duties on the employer, employees, workers and the self-employed to ensure the health, safety and welfare of themselves and others.

Question 168

What are the hirer’s responsibilities under the HSWA?

Health and Safety at Work Act 1974 (HSWA)

Answer 168

• Treat temp workers equally to employees;
• Ensure temp workers follow policies, procedures, rules and instructions for each hirer location;
• Record accidents in the accident book;
• Report deaths or injuries resulting in an absence from work for more that 7 days to the HSE.
• Report any occupational diseases and dangerous occurrances (near-misses).

Question 169

What are the worker’s responsibilities under the HSWA?

Health and Safety at Work Act 1974 (HSWA)

Answer 169

• Not intentionally or recklessly misusing anything provided for their own safety;
• Observe and cooperate with the organisations H&S policy and procedures;
• Take reasnable steps to protect themselves and others who may be affected by their actions;
• Report any injury, accident or occupational disease that occurs during the assignment.

Question 170

What are the EA’s / EB’s responsibilities under the HSWA?

Health and Safety at Work Act 1974 (HSWA)

Answer 170

• Satisfy themselves as to the adequacy of the hirer’s health and safety procedures;
• Carry out a suitable risk assessment of the H&S of the work-seeker;
• Passs information to the work-seeker, information provided by the hirer, including qualifications, skills and experience that is required for the role;
• Ensure work-seekers are provided with adequate health surveilance, protective measures and emergency procedures.

Question 171

What is the purpose of the WTR?

Working Time Regulations 1998

Answer 171

Promotion of H&S in the workplace with direct relation to working hours.

Question 172

What is the purpose of the WTR?

Working Time Regulations 1998

Answer 172

Promotion of H&S in the workplace with direct relation to working hours.

Question 173

What is the scope of the WTR?

Working Time Regulations 1998

Answer 173

• All businesses including EB’s;
• Excludes certain occupations;
• Excludes some LCC’s who are genuinely in business on their own account;
• Covers max average working week, rest periods, breaks, paid annual leave and night work.

Question 174

What is the maximum working week under the WTR?

Working Time Regulations 1998

Answer 174

• 48hrs;
• Calculated over 7 daysand averaged over 17 consecutive weeks;
• A worker can opt-out;
• Must be possible to terminate this notice by the worker.
• Notice period is 7 days to 3 months.

Question 175

How is working time defined under the WTR?

Working Time Regulations 1998

Answer 175

• “working at their employers disposal”
• Excludes ‘on-call’ when on-call is at home;
• Excludes time off due to statuory leave;
• Can be defined by agreement and extended up to 26 weeks.

Question 176

What is the minimum annual leave week under the WTR?

Working Time (Amendment) Regulations 2007

Answer 176

• Minimum 28 days;
• Pro-rated for part-time workers;
• Additional annual leave is governed by employment contract.

Question 177

What are the notice requirements for annual leave under the WTR?

Working Time (Amendment) Regulations 2007

Answer 177

• Twice the length of the leave they request;
• Employers can stipulate in contracts when an employeee must take leave;
• Can include Bank Holidays;
• Employers can refuse by giving notice (period of at least the length of the annual leave requested);
• No automatic right for employees not to work on Bank Holidays;
• Or to be paid if not working;
• Or to be paid more if they are;

Question 178

What are the notice requirements for annual leave under the WTR?

Working Time (Amendment) Regulations 2007

Answer 178

• Twice the length of the leave they request;
• Employers can stipulate in contracts when an employee must take leave;
• Can include Bank Holidays;
• Employers can reasonably refuse by giving notice (period of at least the length of the annual leave requested);
• No automatic right for employees not to work on Bank Holidays;
• Or to be paid if not working;
• Or to be paid more if they are;
• Employers can specify certain days to take holiday and not to take holiday.

Question 179

How is holiday pay calculated?

Working Time Regulations 1998

Answer 179

• When they receive their holiday;
• Emphais is on taking the holiday rather than pay in lieu;
• Straightforward for regular hopurs and wages;
• Less so for those with irregular pay, hours, shift allowances etc.
• Clear for commission based pay and should be included Lock v British Gas

Question 180

How is holiday in lieu and carrying leave forward managed under WTR?

Working Time Regulations 1998

Answer 180

• Employers should not make payments in lieu for stat entitlement;
• Unless employee leaves part-way through leave year;
• Workers should not carry stat leave forward (exception to the rule was Covid pandemic)

Question 181

What are rest break requirements under WTR?

Working Time Regulations 1998

Answer 181

• Young workers: 8hrs per day and 40hrs per week;
• Young worker has reached the age of 15 but is under 18;
• Adult workers are entitled to 11hrs rest in a 24hr period;
• Young worker should have a minimum of 12hrs rest in a 24hr period;
• Adult workers are entitled to a 20min break if working more than a 6hr work period;
• Young workers are entitled to 30mins if working more than 4.5hrs.

Question 182

Who enforces the WTR?

Working Time Regulations 1998

Answer 182

• Employment Tribunals will hear cases brought by individuals;
• Automatically unfair to impose on a worker to opt-out or something against the WTR;
• Rights apply irrespective of length of service;
• If unfairly dismissed, worker is entitled to compensation.

Question 183

What is the purpose of the DPA?

Data Protection Act 1998

Answer 183

To protect any living, indentifiable individual from the misuse or unauthorised disclosure of their personal data.

Question 184

What is personal data under the DPA?

Data Protection Act 1998

Answer 184

• Data which relate to a living individual who can be identified from that data;
• Includes paper, computer and other information including expression of opinion.

Question 185

What is sensitive personal data under the DPA?

Data Protection Act 1998

Answer 185

Information as to:
* Race or ethnic origin;
* Political opinions;
* Religious beliefs or other beliefs;
* Trade union membership;
* Physical or metal health conditions;
* Sex life;
* Criminal acts or alleged offences;
* The outcome of any court proceedings.

Question 186

What are the 8 principles of data protection under the DPA?

Data Protection Act 1998

Answer 186

• Processed fairly and lawfully;
• Obtained for a specified and lawful purpose;
• Shall be adequate, relevant and not excessive;
• Accurate and kept up-to-date;
• Not kept longer than is necessary;
• Processed in accordance with the rights of data subjects;
• Protected against unauthorised or unlawful processing, accidental loss, destruction or damage.
• Shall not be transferred out of the EEA unless an adequate level of data protection exists in that country.

Question 187

Who is responsible for DPA compliance?

Data Protection Act 1998

Answer 187

• Information Commissioners Office (ICO)
• All EA’s and EB’s are required to notify the ICO outlining company details and nature of the data held and the purpose(s) for which it will be used.
• A £35 annual fee is charged.

Question 188

What are an individuals rights under the DPA?

Data Protection Act 1998

Answer 188

• Obtain access to their data and copies of it;
• Claim damages for losses, unauthorised use or destruction of their data;
• Apply to courts and ICO for the correction or removal of inaccurate data.

Question 189

How would an individual enquire into what information an organisation holds about them under the DPA?

Data Protection Act 1998

Answer 189

• Write to the ICO;
• They will be provided with information as to the companies registration status;
• What sort of information they hold;
• And to whom to send a request for information.

Question 190

How would an individual enquire into what information an organisation holds about them under the DPA?

Data Protection Act 1998

Answer 190

• Write to the ICO;
• They will be provided with information as to the companies registration status;
• What sort of information they hold;
• And to whom to send a request for information.

Question 191

What are the obligations of an organisation under the DPA?

Data Protection Act 1998

Answer 191

• Register with the ICO;
• Process data in line with the eight principles of the Act;
• Answer Subject Access requests within 40 days of receiving the fee;
• The organisation may request a fee of up to £10.

Question 192

What are the consequences of a breach of the the DPA?

Data Protection Act 1998

Answer 192

• Implementation of criminal proceedings;
• Serving of an enforcement notice; or
• Refusal of registration or de-registration.

Question 193

Who is protected by NMW legislation?

National Minimum Wage Act and National Minimum Wage Regs

Answer 193

• National Minimum Wage Act applies to a wide category of ‘worker’;
• Does not cover the genuinely self-employed;
• No exemptions for small businesses or part-time workers;
• No opt-outs;
• Different rates depending on age and stutus.

Question 194

What is the National Minimum Wage?

Minimum Wage and National Living Wage

Answer 194

• Applies to all working people under the age of 23;
• 21-22yrs - £9.18;
• 18-20yrs - £6.83;
• Under 18yrs and Apprentice rate - £4.81;
• (Rates correct for 2022 - 2023)
• Low Pay Commission recommends future rises.

Question 195

What is the National Living Wage?

Minimum Wage and National Living Wage

Answer 195

• Applies to all working people over the age of 23;
• Currently £9.50 (until April 2023)

Question 196

How do National Living Wage rules differ for apprentices?

Minimum Wage and National Living Wage

Answer 196

• Entitled to apprentice rate if under 19 and in apprenticship;
• Over 19 and in first year of apprenticeship.
• Over 19 and having completed their first year, they are entitled to the NMW for their age range.

Question 197

What counts towards NMW?

Minimum Wage and National Living Wage

Answer 197

• Gross pay;
• Bonuses;
• Commission; payments
• An employer can apply an Accommodation Offset subject to the statutory limit.

Question 198

What does not count towards NMW?

Minimum Wage and National Living Wage

Answer 198

• Pension contributions;
• Overtime;
• Benefits in kind (other than accommodation);
• Tips;
• Expenses;
• Allowances;
• Redundancy pay;
• Loans;
• Andvancements;
• Lump sums on returement;
• Rewards under suggestion schemes.

Question 199

What constitutes ‘benefits in kind’ NMW?

Minimum Wage and National Living Wage

Answer 199

• Anything an employer provides for an individuals benefit other than pay.
• Other than the accommodation offset, benefits in kind do not count towards NMW.

Question 200

How are working hours an pay reference periods calculated under NMW rules?

Minimum Wage and National Living Wage

Answer 200

• Any period during which workers are working at an employers disposal;
• Carrying out activities and duties;
• Required to be at their place of work and available for work but not on call at home;
• Pay ref periods are set by how often someone is paid but cannot be more than 31 days.
• Must be paid NMW, on average, for the hours worked.

Question 201

How long should records be kept for under NMW rules?

Minimum Wage and National Living Wage

Answer 201

3 years and 1 pay period (week/month).

Question 202

What exemptions are there to NMW rules?

Minimum Wage and National Living Wage

Answer 202

• Self-employed;
• Volunteers;
• Company Directors;
• Family members;
• People who live in the faily home of the employer and undertake household tasks.

Question 203

Who enforces NMW rules and on what basis can they investigate?

Minimum Wage and National Living Wage

Answer 203

• HMRC;
• HMRC Officers must show identity;
• Carry out inspections at any time and unannounced;
• In response to a complaint by workers or others;
• Concerning NMW or risk of non-payment.

Question 204

What powers do the HMRC have to enforce NMW rules?

Minimum Wage and National Living Wage

Answer 204

Officers can:
* Enter employers premises to interview the employer at any reasonable time;
* Require the employer to attend an interview at a place of the officers choosing;
* Enforce employers to produce and explain pay records; and
* Supply further explanations to establish that the law has been complied with;
* Remove and copy records from the employers premises (but must return them within a reasonable time.

Question 205

What are the consequences of breaking NMW rules?

Minimum Wage and National Living Wage

Answer 205

• Notice of Underpayment;
• Criminal Offences

Question 206

What is a Notice of Underpayment?

Minimum Wage and National Living Wage

Answer 206

• Requires the employer to :
• Repay arrears;
• Pay a penalty of 200% of arrears owed;
• Up to £20,000;
• Can be reduced by 50% if the employer complies within 14 days;
• Employers can appeal within 28 days.

Question 207

What are the consequences of not complying with a Notice of Underpayment?

Minimum Wage and National Living Wage

Answer 207

• Take the case to Tribunal on behalf of the worker;
• Prosecute the employer under criminal law.

Question 208

What are the criminal offences under NMW?

Minimum Wage and National Living Wage

Answer 208

• Refusing or wilfully neglecting to pay NMW;
• Failing to keep or preserve rcords;
• Causing or allowing a false entry of NMW records;
• Producing or furnishing false records or info;
• Intentionally delaying or obstructing compliance officer;
• Refusing or neglecting to answer questions, give info or produce documents.

Question 209

What are the consequences of being found guilty of an offence under NMWA?

Minimum Wage and National Living Wage

Answer 209

• £5000 on conviction of each offence at Magistrates;
• Unlimited fines in Crown Court.

Question 210

What rights does a worker have with regards to access of their NMW records?

Minimum Wage and National Living Wage

Answer 210

• The right to examine and copy their own records by written request;
• Which the employer must repond to within 14 days;
• Can be accompanied by someone if specified in written request;
• Either at the place of work or mutually agreed location;
• Refusal by the employer could lead to an ET compensation of up to 80 times the NMW.

Question 211

What is the purpose of the Immigration, Asylum and Nationality Act?

Immigration, Asylum and Nationality Act 2006

Answer 211

Ensure all those living in the UK have a legal right to do so.

Question 212

What are the consequences of Brexit on EU Nationals?

Immigration, Asylum and Nationality Act 2006

Answer 212

• Free movement of labour with the EU ended;
• Governments created ‘Settled Status’ and ‘Pre-Settled Status’.
• Does not apply to Irish Republic.

Question 213

Describe ‘Settled Status’?

Immigration, Asylum and Nationality Act 2006

Answer 213

• 5yrs or more continuous residence prior to 31st Dec 2020;
• Applied with evidence by 31st June 2021;
• Granted indefinitely, but lapses after 5yrs absence;
• Criminality assessment required;
• Can apply for citizenship after 5yrs.

Question 214

Describe ‘Pre-Settled Status’?

Immigration, Asylum and Nationality Act 2006

Answer 214

• Less than 5yrs continuous residence prior to 31st Dec 2020;
• Applied by 31st June 2021;
• Granted for 5yrs, lapses after 2yrs absence;
• Criminality assessment required;
• No direct route to citizenship.

Question 215

What does the IA provide?

The Immigration Act 2016 (IA)

Answer 215

A criminal offence to work in the UK if a person works when they are disqualified to work or have reason to believe that they are disqualified from working due to the immigration status.

Question 216

What duties do EA’s and EB’s have in relation to ‘right to work’ checks?

The Immigration Act 2016 (IA) Immigration, Asylum and Nationality Act

Answer 216

• Employers have a duty to check a worker’s entitled to work in the UK;
• An employer or EB could face a fine of up to £20,000;
• An EA could face civil lawsuits from a hirer.

Question 217

What steps should an employer or EB take in checking a workers identity?

The Immigration Act 2016 (IA) Immigration, Asylum and Nationality Act

Answer 217

• Step 1 - Obtain an original document from List A or B of acceptable documents;
• Step 2 - Check the legitimacy, expiry, consistency and for any work restrictions;
• Step 3 - Copy and retain securely with a record of when the checks were conducted.
• Keep for the work period and 2 yrs after the worker finishes the assignment and destroy securely afterwards.

Question 218

What steps should an EA take in checking a workers identity?

The Immigration Act 2016 (IA) Immigration, Asylum and Nationality Act

Answer 218

• No legal requirement to undertake a formal check to confirm immigration status;
• REC advises that members should advise the hirer on whether these checks have been carried out.

Question 219

What do the documents contained within List A and list B indicate?

The Immigration Act 2016 (IA) Immigration, Asylum and Nationality Act

Answer 219

• List A - establishes a persons ongoing entitlement to work in the UK. One off check required.
• List B - indicates that there are restrictions upon the workers rights to be in the UK. Checked prior to the assignment and when the permission to work or Positive Verification notice expires.

Question 220

Name the categories within the UK points based system:

The Immigration Act 2016 (IA) Immigration, Asylum and Nationality Act

Answer 220

• Innovators and start-up visas;
• Long-term skilled qworker;
• Short-term skilled worker;
• Other.

Question 221

Describe the workings of the points based system in the UK?

The Immigration Act 2016 (IA) Immigration, Asylum and Nationality Act

Answer 221

Each visa has an assigned number of points achieved with various criteria such as qualifications, experience, age and financial circumstances.

Question 222

Explain the workings of the sponsorship system in the UK, where it applies?

The Immigration Act 2016 (IA) Immigration, Asylum and Nationality Act

Answer 222

• Sponsor must have a sponsorship licence issued by UK Visas and Immigration;
• Sponsor must be on UK Border Agency resister of sponsors.

Question 223

What does PECR seek to achieve?

Privacy and Electronics Communications Regulations 2003

Answer 223

• Makes it unlawful to make unsolicited direct marketing calls and faxes to individuals or organisations who have indicated that they do not wish to receive such contact.
• It is unlawful to send unsolicited emails or text messages to an individual with whom there is no existing customer relationship with.
• Where there is an existing customer relationship it is legal providing the communication includes information on how to opt-out.

Question 224

How does someone indicate a desire not to be contacted?

Privacy and Electronics Communications Regulations 2003

Answer 224

Register with:
* Telephone Preference Service (TPS); and
* Fax Preference Service (FPS)

Question 225

What are the consequences of contravening Regulations?

Privacy and Electronics Communications Regulations 2003

Answer 225

• List is updated every 28 days;
• TPS or FPS will investigate complaints itially;
• TPS/FPS will report contravention to the ICO; or
• Complaints can be made directly to the ICO;
• Minor breach will result in a letter to the individual or organisation;
• Serious breach will result in Enforcement Notice;
• Continued breaches could result in a Mag Court £5000 fine or unlimited fine in the High Court.
• Enforced with powers provided in th Data Protection Act.

Question 226

Explain what is meant by the Bribary Act’s global reach?

Bribary Act 2010

Answer 226

• Any individual ordinarily resident in the UK (UK national or not) can be prosecuted for bribary offences comitted anywhere in the world;
• Any organisation (incorporated in the UK or not) can be prosecuted for a bribary offence if it conducts business in the UK, even if the offence was committed outside of the UK.

Question 227

When is a gift or hospitality legal under UK law?

Bribary Act 2010

Answer 227

If the gift or hospitality is reasonable and proportionate and given for a bona-fidebusiness reason and not to influence improper performance or a function or activity.

Question 228

What does the Modern Slavery Act cover?

Modern Slavery Act 2015

Answer 228

• Forced and compulsory labour;
• Human trafficking;
• Includes children and adults

Question 229

What does the Modern Slavery Act seek to achieve?

Modern Slavery Act 2015

Answer 229

• Reduce ‘debt bondage’;
• Identify and support victims;
• Reparation costs for victims;
• Close gaps in law to reduce trafficking;
• Requires large businesses to disclose the measures they have taken to ensure that there is no modern slavery in their supply chain.

Question 230

What does REC Code of Professional Practice / Recruitment Professionals Code of Ethics and Professional Conduct seek to achieve?

REC Code of Professional Practice / Recruitment Professionals Code of Ethics and Professional Conduct

Answer 230

• Formulated from the law and best practice;
• Specific, measurable codes of best practice;
• Concerned with activities of recruitment, employment and contracts generally;
• Ensure ethical and professional service.

Question 231

What are REC members expected to observe?

REC Code of Professional Practice / Recruitment Professionals Code of Ethics and Professional Conduct

Answer 231

• Highest principles of ethics;
• Equity;
• Integrity;
• Professional conduct;
• Fair practice;
• Extends beyond compliance and legal requirements.

Question 232

How does the REC Code operate and how is it enforced?

REC Code of Professional Practice / Recruitment Professionals Code of Ethics and Professional Conduct

Answer 232

• Binding on all Corporate Members and subsidiary/associate companies;
• Where industry specific REC codes apply these are also binding;
• Complaints will be investigated under the REC Complaints & Disciplinary Procedure.

Question 233

Name the REC Code Principles that apply to corporate members:

REC Code of Professional Practice / Recruitment Professionals Code of Ethics and Professional Conduct

Answer 233

Respect for:
1. Laws;
2. Honesty and transparancy;
3. Work relationships;
4. Diversity;
5. Safety;
6. Professional knowledge;
7. Certainty of engagement;
8. Prompt and accurate payment;
9. Ethical international recruitment;
10. Confidentiality and privacy.

Question 234

Name the REC Code of Ethics that apply to individual members:

REC Code of Professional Practice / Recruitment Professionals Code of Ethics and Professional Conduct

Answer 234

Respect for:
1. Work relationships;
2. Honesty and transparancy;
3. Confidentiality and privacy;
4. Laws;
5. Diversity
6. Commitment to professional development.