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| The following professions fall under The Exceptions Order in The Rehabilitation of Offenders Act 1974 (Exceptions order) 1975. Schedule 1, Articles 2(3), 3 and 4. |
Excepted professions, offices, employments, work and occupations:
• Fnancial Advisor
• Chartered Accountant
• Certified Accountant
• Actuary
• Mortgage Advisor
• Director, controller or manager of an insurance company
• Employment providing investment, insurance or other financial service
• Director or officer of a Building Society
• All positions for which the Financial Services Authority or the competent authority for listing are entitled to ask exempted questions to fulfil their obligations under the Financial Services and Markets Act 2000.
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Consequences of failure to comply with the regulations
The 'Act' means The Employment Agencies Act 1973
There are several potential consequences of failure to comply with the regulations. Considered together, they are formidable – in short, the company and any responsible individuals may be prosecuted; orders may be made (against either) prohibiting the carrying on of future EA and EB business; terms of contracts may be unenforceable; and there may also be civil liability. Taken together, these consequences may be taken to represent a heavy sledgehammer.
Criminal
Under the terms of the Act itself (s5(2)), failure to comply with any regulation made under the Act is a criminal offence, and may be the subject of prosecution. The potential penalty is a substantial fine.
Additionally, the Act provides that where an offence committed by a company has been committed with the consent, connivance, or as a result of neglect on the part of a director, manager, (company) secretary or other officer, the individual is also liable to prosecution.
Prohibition
There are powers whereby proceedings may be brought to seek an order prohibiting a person from carrying on the business of EA or EB. The prohibition may last as long as 10 years.
Failing to comply with a prohibition order is also an offence.
Civil liability
Any failure to comply with the regulations may give rise to a civil claim by someone who has suffered loss as a result of that failure
Overall, it must be clear that it is essential for all those carrying on business in the field to ensure that all reasonable steps are taken to understand the regulations, and to ensure compliance.
It remains to be seen whether the regulations will have significant effects on either (a) willingness of insurers to offer professional indemnity cover – and of course, premiums; and (b) perhaps more seriously, the degree of risk perceived by those companies who offer financial support to EA/EBs (particularly to EBs, who may be wholly dependent on such support for their very survival in order to fund payment of work-seekers before they themselves receive payment from hirers), whether by factoring or otherwise – and the influence that may have on their willingness to continue to do so on no worse terms.
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