Working away: the CMA’s first infringement decision concerning labour markets

Last week, the CMA closed two investigations concerning information exchange in labour markets for workers in the sports and non-sports TV production and broadcasting sectors. 

In its sports broadcasting case, the CMA found that five companies (the BBC, BT, IMG, ITV and Sky) infringed competition law by disclosing and receiving or exchanging competitively sensitive information regarding pay rates for freelance workers. Sky (involved in 10 out of 15 of the infringements) reported this conduct to the CMA and thus benefitted from the CMA’s leniency policy. The remaining four companies settled the case with the CMA, but have been fined over £4.2 million in total.

This is the first CMA infringement decision concerning anticompetitive conduct in labour markets which on its face has found that sharing salary information is a by object infringement. Some caution is advisable however - as this is a settlement decision, the CMA’s analysis of the infringing conduct has not been fully tested. 

The CMA also closed its non-sports broadcasting investigation on administrative priority grounds at the same time, but signalled in its closure statement that it “intends to publish further guidance to employers on how to avoid anti-competitive behaviour in labour markets as a way of increasing both general deterrence and compliance”.

In addition to this general guidance, the CMA is due to provide an update in April regarding its investigation into the supply of fragrances. The CMA opened this case in 2023, and in 2024 extended its investigation to include possible unlawful coordination relating to the hiring or recruitment of staff. 

A growing enforcement trend

The CMA has indicated that it will continue focussing on labour markets as an enforcement priority. In Juliette Enser’s (CMA) recent speech on the future of UK competition enforcement, she said that “we anticipate that our current and future work in the area of labour should help bring home to businesses their obligations in this area, as well as ultimately helping reduce labour market frictions”.

The CMA is not the only regulator turning its attention to labour markets. In May 2024, the European Commission published a policy brief setting out the view that wage-fixing and no-poach agreements should generally be treated as by object restrictions of Article 101(1) TFEU. While the Commission has set the policy direction, it is likely that we will see enforcement in this area on a Member State level, given that labour markets tend to be national. Member State agencies have already become active in this area, e.g. the Portuguese authority recently fined the Inetum Group over €3 million for engaging in no poach agreements.

Taken together, the settlement decision in the sports broadcasting case, case closure in non-sports broadcasting investigation and promised further guidance should put companies on notice of the need for caution when it comes to sharing employment related information.