Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - professional chef
Part 2, Chapter 7 Income Tax (Earnings and Pensions) Act 2003, Part 2, Chapter 7, section 44(2)(a)
Social Security (Categorisation of Earners) Regulations 1978, Schedule 1, Part 1, paragraph 2
Imran is a qualified chef who has a number of years’ experience working in various restaurants. He obtains his work via an employment business which finds him jobs with clients. A High Street restaurant asks the employment business to supply them with a qualified chef with experience of working in a professional restaurant to provide one month’s cover for an absent chef. The employment business contact Imran about the position and as Imran is keen to take the engagement, arrangements are made for him to visit the restaurant to be interviewed by the Proprietor/Head Chef. The interview takes place, after which Imran is offered the engagement, which he accepts.
Imran attends the restaurant on his first day and meets Barry (the Proprietor/Head Chef), who presents Imran with a copy of the restaurant’s current menu, containing specialist dishes which Barry has created. Barry tells Imran he must be able to prepare and cook those dishes in the same way and to the same standard as the restaurant’s other chefs and throughout his engagement he must comply with the mandatory health and safety and food hygiene standards whilst working in the kitchen.
Imran’s first task is to watch Barry demonstrate how he makes his specialist dishes, copying Barry as he goes along, to ensure he learns how to prepare the dishes as required. Throughout Imran’s engagement, Barry dictates how Imran will undertake his various duties. This includes telling Imran what dishes he must prepare, the way they must be prepared, and what specific ingredients he must use. Over the next month, Barry watches over Imran and the other chefs during their work, to ensure they are preparing and cooking the dishes correctly and on time, stepping in to provide guidance and assistance where necessary. Barry also provides Imran with other jobs to do in addition to preparing meals. This includes helping with the checking and ordering of new stock from the suppliers and unloading, recording, and storing those supplies upon delivery. Imran completes his work for this client at the end of the month.
In this scenario, Imran has been subject to supervision, direction, and control as to the manner in which he provides his services. Barry has told Imran what specific work he must do and how that work must be done, directing Imran in his work throughout as he moved Imran from task to task. Barry also supervised operations in the kitchen to make sure Imran and the other chefs were doing their work in the way Barry required (i.e. preparing dishes in a specific way). Imran had no control over the manner in which he provided his services, as this was all dictated by Barry.
The agency legislation applies to this scenario, provided the other conditions of the legislation are also met.
We can see from this particular example that Imran was required to comply with health and safety and food hygiene standards. HMRC do not consider these factors alone demonstrate the worker being subject to (or to a right of) supervision, direction, or control as to the manner in which they provide their services for the purpose of the agency legislation, as they are mandatory requirement for all persons working in food preparation (regardless of their employment status).
Imran visits the restaurant and meets with Gary (the Proprietor/sole Chef). They discuss Imran’s extensive experience as contained upon Imran’s CV. Gary tells Imran he normally runs the restaurant himself, cooking the meals with his two catering assistants, but as Gary has decided to have a break for the next month, he wants Imran to step in and cover for him and use the two catering assistants as Imran chooses. Gary presents Imran with a copy of the restaurant’s current menu and tells Imran he is happy for Imran to prepare the meals in his own way, using whatever ingredients he chooses and if Imran wants to introduce a couple of his own signature dishes then that is fine, provided Gary can sample them beforehand. Imran decides he would like to add two of his signature dishes to the menu. He cooks both dishes for Gary, who approves them and afterwards then leaves Imran alone to work in the kitchen without any interference whatsoever, as Gary goes on holiday.
For the next month, Imran has complete control of the kitchen and the catering assistants who are working alongside him. All of the meals are prepared per Imran’s own specification, and throughout Imran has complete freedom to provide his culinary expertise as he chooses. Imran completes his one month engagement for this client.
In this scenario, whilst Imran was preparing dishes that were largely dictated by the restaurant’s menu, he was free to prepare those dishes and his own creations as he saw fit, without interference from anyone. Whilst the proprietor wanted to taste Imran’s signature dishes before allowing him to make them, this is not an example of the proprietor exercising any supervision, direction, or control. The proprietor was simply ensuring those signature dishes were good enough to sit alongside the other dishes on the menu, thus ensuring the restaurant’s good reputation was maintained. Imran was not supervised, directed, or controlled by anyone during the one month that he provided his services, nor did anyone have a right to supervise, direct, or control how Imran provided his services. The Agency legislation will not apply to this scenario.