Tutoring services: guidance for complying with EAS legislation
This guidance aims to help tutoring services to comply with the requirements of the Employment Agencies Act 1973 (the Act) and Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Conduct Regulations).
The Employment Agency Standards Inspectorate (EAS) is the state regulator for the private recruitment sector and is responsible for seeking compliance with this legislation. They check for compliance by investigating complaints made by agency workers and carrying out inspections of recruitment agencies.
What a tutor service is
For the purposes of this guidance, we consider a tutoring service to be a service which seeks to introduce tutors to students or students to tutors. This includes services which:
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are free or which are run with a view to profit
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are provided together with other services
Other services which may be provided might include:
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payment collection and distribution services (only applicable if operating as an employment business - read How to check if your tutor service falls within scope of the Act and the Conduct Regulations for the definition)
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diary management
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dispute resolution
The method of service delivery may be online, remote, or face to face, or a combination of them.
Anyone setting up a new tutoring service or running an existing one should consider seeking their own independent legal advice on their obligations under the Act and Conduct Regulations. Read the following section for more information.
How to check if your tutor service falls within scope of the Act and the Conduct Regulations
If your tutor service is acting as an intermediary between tutors looking for work and a person or business looking for a tutor to carry out work then this activity is likely to fall with the scope of the Act and the Conduct Regulations.
These requirements could apply whether you are operating in the private, public or not-for-profit sectors.
Your tutor service is likely to be operating as either an employment business or an employment agency. Understanding which model applies to the activity you undertake is important as this will determine what requirements you need to comply with under the Conduct Regulations.
A tutor service acting as an employment business will:
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agree a contract with the tutor directly or indirectly through a third party such as an umbrella company who employs them
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supply the tutor to carry out work on a temporary assignment under the direction and control of a hirer
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be responsible for paying the tutor or for paying the umbrella company who employs the tutor for the hours worked
A tutor service acting as an employment agency will:
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introduce a tutor and a hirer, for that tutor to become directly employed and carry out work under contract with that hirer, although often for a short period at a time
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be prohibited under the Conduct Regulations from paying or being involved with paying the tutor
‘Tutor’ can include persons such as freelancers who supply their services through their own or other limited companies.
Charging fees to tutors or work-seekers
It is illegal for an employment business or employment agency to charge fees to tutors for providing work-finding services to them. This is a criminal offence.
Why the business model is important (payment mechanisms)
Employment businesses either engage the worker directly or indirectly through an umbrella company. As such, the employment business has an obligation to pay the worker directly for all hours worked. If the worker is engaged by an employment business through an umbrella company, the employment business must pay the umbrella company for all hours worked by the worker and the umbrella company then pays the worker for all hours worked less any deductions. It is a criminal offence for an employment business to withhold payment from a work-seeker for hours they have worked on any of the grounds in Regulation 12.
Employment agencies are prohibited by Regulation 8 of the Conduct Regulations from paying or being involved with paying work-seekers they have introduced or supplied to hirers.
This includes:
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paying the workers directly
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making arrangements for the workers payment
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introducing or referring the hirer to anyone that the agency is connected with to pay the worker or make arrangements for the workers payment
This does not include using third party payment mechanisms but only under strict conditions.
For a third party payment mechanism to be permissible the following conditions must be met:
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the third party generates separate invoices for an employment agency and a tutor and sends them to a hirer
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the tutor and employment agency must each feed into that third party independently and bear their own costs
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in such cases, (at the request of the third party) the hirer could pay a combined sum to that third party, from information provided to it by both the tutor and employment agency
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the third party receives the combined sum from the hirer into an independent account that does not belong to either the tutor or employment agency. The third party splits the combined sum into the correct amounts and pays the tutor and employment agency respectively. Tutors and the employment agency bear their own costs
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there needs to be transparency in the documents that an employment agency provides to both hirers and tutors before services commence
General compliance with Employment Agency Standards (EAS) legislation
Both employment businesses and employment agencies may find the guidance in this section useful.
You can find more information on the EAS website.
You can find detailed guidance on complying with the Act and the Conduct Regulations here.
You can find an overview of your obligations when acting as an intermediary between persons seeking work and a hirer here.
Consequences of non-compliance
The Act and the Conduct Regulations 2003 set out minimum standards that employment businesses and employment agencies need to comply with.
EAS is willing to work with and enter discussions with businesses and support them in getting things right and to comply with the law.
Failure to meet these minimum standards, however, may result in enforcement action by EAS.
This can include prosecution and if a person is found guilty of an offence, they are liable on conviction to a fine.
It is also open for EAS, where an offence has been committed, to consider a Labour Market Enforcement Undertaking (for a period of up to 2 years). If an Undertaking cannot be agreed or is not complied with, EAS can apply for a Labour Market Enforcement Order. This can be for a period of up to 2 years, through the courts, and may be granted upon conviction. If a person fails to comply with the order, they could be fined or imprisoned for up to 2 years
The Secretary of State can also consider applying for a prohibition order against a person from carrying on or being concerned with the carrying on of an employment agency or employment business for up to a maximum of 10 years on the grounds of misconduct or unsuitability.
Further information
If you have any queries on the legislation, or if you are wondering whether your business activity falls within scope, contact EAS directly:
Employment Agency Standards
Email eas@businessandtrade.gov.uk
Telephone 020 7215 4477
This note of general guidance, and any further information provided by EAS, may be used to help gain understanding of the legislation and is correct as of October 2023. However, they cannot provide definitive answers to individual queries and are not intended to be relied upon in any specific context or as a substitute for seeking your own independent legal advice on specific circumstances, as each case may be different.