Deaneries as employment agencies
Frequently asked questions
May 2008 - revised 27 May
As a result of consultation between the BMA legal department and the Employment Agency Standards Inspectorate (EASI), the Junior Doctors Committee has ascertained that deaneries in England* appear very likely to be classified as employment agencies under the Employment Agencies Act 1973. On this basis our legal department has advised that deaneries must comply with the Act and most importantly with regulations from 2004 governing their conduct.
More detailed information on the implications of this development will be available here in due course.
* for the position in the devolved nations see question 5.
1. Why has the JDC been investigating deaneries and what has it found out?
Over the last weeks the JDC has sought legal clarification of the role of deaneries in the recruitment process. The BMA Legal department has looked into this and consulted with the Employment Agency Standards Inspectorate (EASI). This is the organisation responsible for the regulation and supervision of employment agencies. They have confirmed the Legal department's view that it would appear that the requirements of the Employment Agencies Act 1973 would apply to the deaneries. In an email to the BMA dated 17 April the EASI noted that there were very few exemptions from the scope of the Act and commented:
“As the services that are provided by the Deaneries do not appear to fall within one of these categories it would seem that the legislation would apply to them.”
It should however be noted that the EASI cannot give definitive legal advice; ultimately a ruling as to whether the legislation applies to deaneries can only be provided by a Court.
At the same time we wrote to the deaneries to ask them to confirm their own view of whether they think the Employment Agencies Act 1973 applies to them. To date we have not had any substantive responses, although we understand that as a result of our letter some deaneries have contacted the Department of Health and solicitors for advice. We understand the DH legal department is currently giving the matter consideration.
Following clarification as to the on deaneries’ status from the EASI the BMA Legal department wrote again to the EASI to report the deaneries for breaches of the regulations. Further letters were also written to the deaneries informing them that the BMA believed they were covered by the legislation and that we did not believe they were fulfilling their responsibilities under the Act. We also copied each Deanery the letter we wrote reporting them to the EASI.
We are awaiting a full reply from the EASI as to the outcome of our complaint, we understand that this can take approximately six weeks.
2. If deaneries are classed as employment agencies under the legislation, what are the implications for junior doctors?
Employment agencies must comply with ‘The Conduct of Employment Agencies and Employment Businesses Regulations 2003’ - go there now .
The requirements of the regulations are relatively onerous. Of particular importance to junior doctors, agencies must provide the following information to work-seekers at the same time that a position is offered:
- The name of the employer
- The start date and length (or likely length) of the period of employment
- The name of the position needing to be filled and the work needing to be done
- The location of the work
- The hours needing to be worked
- Any potential risks to the doctor’s health & safety
- The qualifications/experience required to do the job
- Any expenses payable
- The minimum rate of remuneration payable and any other benefits on offer.
- The intervals at which the doctor would be paid
- The notice period applicable
There is also a possibility that deaneries would be breaching the legislation if they subjected a doctor to any detriment in the event that they withdrew from a contract with them. There may therefore be an argument that deaneries should not be able to influence the applications of specialty trainees who apply for multiple training programmes and who accept and withdraw from a post in preference to another. This is a question on which the BMA is seeking further legal advice.
We regret that we are not yet in a position to respond fully to many of the questions that this development raises, but we are working on further detailed advice and will publicise this as soon as it is ready.
3. What does the JDC hope to achieve from this development?
In comparison with other professions, junior doctors are badly treated in the recruitment process and we hope that this investigation will improve the situation. Currently junior doctors are generally expected to apply for jobs not knowing where they will eventually work across a region, what their hours will be or what their pay will be.
We hope that the outcome of this investigation will prompt the Departments of Health to provide increased resources to deaneries to enable deaneries to comply with the regulations.
4. If a deanery has not provided me with this information but has offered me a training programme and only told me which employer I will start with in August, what can I do? How can the regulations be enforced?
The BMA has already begun the process of challenging the actions of deaneries by notifying the Employment Agency Standards Inspectorate (EASI) of deaneries’ failure to comply with the legislation. Usually the EASI will contact agencies and inspect their procedures. They will issue corrective action advice if agencies are infringing the regulations. The detail of the EASI complaints procedures can be accessed here - go there now . However, the EASI will only begin proceedings once they have made a final decision about the status of deaneries.
If you have not been provided with the information listed in FAQ2, you should write to the deanery requesting that they inform you of the missing details, referring them to the Employment Agencies Act 1973 and the 2003 conduct regulations and asking them to point to reasons detailing if and why they think they are exempt from the legislation and whether they believe they have complied with the legislation. You could also lodge a complaint with the EASI using the procedures detailed on the BERR website above. If you have suffered a financial loss then a claim could be brought before the County Courts. However, as set out in FAQ2 the BMA is still currently looking into the detail of the regulations and any such claims may be premature. We will advise you when we have more detailed guidance about the legislation’s application.
5. What is the position in Scotland, Wales and Northern Ireland?
We are currently investigating the situation for deaneries in these countries, which differ slightly in structure and governance to those in England. However, it is likely that the situation will be similar to that in England, as the regulations apply in Great Britain (with similar legislation applicable in Northern Ireland) wherever an organisation provides work-finding services.
6. Does this advice apply to applicants to specialty training, GP training and foundation training alike?
This advice applies wherever deaneries manage the recruitment of doctors to the NHS by placing work-seekers with employers.
7. I’ve been working in a rotation for the past 4 years, can I make a retrospective claim?
The regulations requiring deaneries to provide the information listed in FAQ2 came into force in April 2004 so claims can only be made in relation to periods of employment from this point forwards.
The BMA is working on more detailed advice in this area, but essentially retrospective claims against deaneries are possible. We will provide further information and guidance as soon as possible.