Department for Business, Enterprise & Regulatory Reform v Adams (t/a Juliet Adams Model Agency)

For the statutory exception permitting employment agencies to charge fees for publication-based services, the information about the work-seeker need not already have been included in the publication when the fee is charged. The exception can apply where inclusion is to occur in the future. The reference to a reasonable estimate of attributable production and circulation costs is consistent with advance charging. The lawfulness of the demand must be assessed when it is made. A demand does not become unlawful merely because the information is not included within a reasonable time. Where the evidence does not show that the fee exceeded a reasonable estimate of the relevant costs, a tribunal may properly find that there is no case to answer.

The claimant appealed by case stated from the decision of a Deputy District Judge at Camberwell Green Magistrates’ Court. The judge dismissed informations alleging that the defendant, an employment agency operator, had unlawfully received fees contrary to section 6(1) of the Employment Agencies Act 1973.

The fees related to proposed modelling services for children. The agency’s occupations fell within Schedule 3 to the Conduct of Employment Agencies and Employment Business Regulations 2003. The judge concluded that the website was a qualifying publication under regulation 26(5), that the fees did not appear to exceed a reasonable estimate of attributable production and circulation costs, and that there was no case to answer. The central issue was whether that conclusion was one which no reasonable tribunal could have reached.

1. Appeal dismissed. The decision that there was no case to answer was not one which no reasonable tribunal could have made.
2. Regulation 26(5) of the Conduct of Employment Agencies and Employment Business Regulations 2003 is not confined to cases where information about the work-seeker has already been included in the publication. Its language also covers a fee charged in advance for information to be included in the future.
3. The reference in regulation 26(5)(b)(ii) to a reasonable estimate of the costs attributable to including information about the work-seeker does not require the work-seeker already to have appeared in the publication. The word estimate naturally accommodates work that is to be done, although it may also relate to completed work where precise costs are difficult to ascertain.
4. Regulation 26(5)(c), which refers to offering to include information about the work-seeker, provides further support for the prospective construction. The statutory exception therefore may disapply the general restriction in regulation 26(2) even though inclusion has not yet occurred.
5. The lawfulness of the demand for fees must be judged when the demand is made. A demand lawful at that time does not become unlawful merely because the information is not included after a reasonable period.
6. The District Judge was entitled to find that there was no evidence that the fees exceeded reasonable estimates of the relevant costs. The alternative submission based on the later failure to take photographs and publish the information was not the case argued below and was misconceived.

• High Court (Administrative Court): on an appeal by case stated, dismissed the appeal and held that the Magistrates’ Court’s decision that there was no case to answer was one a reasonable tribunal could have made.
• Camberwell Green Magistrates’ Court: dismissed the informations after ruling that there was no case to answer.