ESM11065 - Check Employment Status For Tax: Control - What the worker does

CEST asks ‘Does your organisation have the right to move the worker from the task they originally agreed to do?’ or ‘Does your client have the right to move you from the task you originally agreed to do?’

ESM0520 provides detail about how control over when the what is done affects status. Examples can be found at ESM0521 to show how HMRC considers the right to control ‘what’ a worker does.

Where the hirer can move a worker between tasks as their priorities dictate, this would fall within the ‘yes’ category for CEST.

Where a hirer has the right to move a worker to another task, without additional remuneration, but can only do so with the worker’s consent HMRC would expect this to fall within the worker having to agree category. The hirer will only require the worker’s consent where the worker has a meaningful right to decline to perform different work of a similar nature. This should be more than a right to be consulted.

Where a worker can only be moved to an alternative task under some new form of agreement, for further remuneration, HMRC would expect this to fall under the requirement for a new contract.

EXAMPLE

Salina is an IT programmer recruited by a large business (the hirer) to lead development of a new online product. The large business has several ongoing, and distinct, products in development at the same time each with its own project team.

• If the hirer is free to move Salina to another project to meet its own project milestones or to another task within the same project, then for the purposes of CEST they control ‘what’ is done.
• If the hirer can move Salina under the same contract but only with her prior agreement, then for CEST purposes the worker must agree.
• If Salina can only be moved to another project by agreeing another contract with her then for CEST purposes it would require a new agreement.