Q: How long can my agent hold my earnings?
Several months ago I performed a booking arranged for me by my agent. I am still awaiting payment. Apparently he is short of money because he is owed substantial cash from another firm. Is this legal?
A: No, it is not! There are stringent statutory regulations governing the operation of employment agencies which include agencies who are in the business of finding engagements for performing artists, whether employed or self-employed. These regulations include a requirement that the agent must pay the client no later than ten days after receipt, unless the client has otherwise requested in writing, and subject to making any statutory or agreed deductions (such as any agreed deduction in respect of the agent's commission). However, if the agent received payment by a foreign cheque, he has until seven days after receipt to bank the cheque and a further seven days after clearance of the cheque to pay the client. If the agent is requested by the client in writing to hold money on the client's behalf (as sometimes happens when it is agreed that the agent will account to the client at specified intervals, e.g. monthly or quarterly or whatever) the agent must pay the money into a separate client account, the operation of which is strictly regulated under the rules.
Money held in a client account of that nature would very probably be regarded as trust money, not available to the agent's general body of creditors. There is an obligation to keep strict records of all dealings by the agent with client's money. In your case it is irrelevant that the agent is owed money from someone else. He must account to you promptly in accordance with his statutory and contractual obligations.
You have two remedies open to you. One is to sue the agent, obtain judgement and seek to enforce it in the normal way. The other is to lodge a complaint with the Department for Education and Employment and request that department to apply to an industrial tribunal for a prohibition order against the agent which would prohibit him from carrying on business, either as an employment agency generally, or in relation to employment agency business of a particular category.
Possibly the threat of one or both of these courses may have a salutary effect on the agent and result in your receiving payment without further delay. It is a common misapprehension that since the licensing of employment agencies was abolished in 1994, there is no effective sanction against misconduct, whereas in fact the risk of a prohibition order putting the agent out of business may be a real deterrent.
An isolated or inadvertent instance of failure to account on due date is unlikely to result in a prohibition order, but the same cannot be said for a wilful or persistent failure to account, particularly if you are not the only client to whom this applies.
First published 1995