The defendant, which ran a directory for performers, was not an agency as it was a marketing tool rather than acting as an agent to find those performers for an employer.

The claimant is a union of performers and creative practitioners. The defendant produced a directory in which performers paid to publish information about themselves. It was originally in paper form and sent to casting directors but later became digital. The claimants argued that the defendant was operating for the ‘purposes of finding persons employment with employers’ and therefore an employment agency in line with the Employment Agencies Act 1973.

The High Court found that there was no employment agency in this situation. They noted that there was limited case law on the definition of an agency but that the 1973 Act had to be read in context. The context of the legislation related to an organisation ‘finding’ employment with employers. It was held that the defendant here did not find the employment but merely enabled the performers to promote themselves. It may have enhanced the opportunity to become employed, but it was better regarded as a marketing tool rather than an employment agency. This was clear from the fact that the defendant did not provide a service to amend or improve the performer’s information neither did it manage money on the performer’s behalf. The High Court looked at the House of Lords debate on the bill and found that the intention behind the Act was to control and regulate the industry rather than widen the definition so that the likes of the defendant’s service would become an agency.

This case relates to an area that has not been explored all that much within the cases – i.e. what is the definition of an employment agency. The legislation provides the bare bones and the decision here has provided some flesh to that in looking at the extent to which the organisation actually finds the employment, assists the individual in finding that employment with particular services, and whether they manage the money as part of the arrangement.  This was not the case, so no agency was found but this decision may be useful for organisations which are sitting in that intermediate space between individuals carrying out the work and employers and what their categorisation is.

You can read the case in full here.