ESM2059 - Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - HGV driver
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
Harry is a qualified HGV Driver who holds a Category C&E licence. A furniture manufacturing company in Manchester contacts the employment business and asks them to supply a fully qualified HGV driver to their factory to make a delivery of furniture to a customer. The engagement is for one day only. The employment business contacts Harry who is offered the engagement and told to report to the factory at eight am the following day.
Harry arrives at the furniture factory as instructed and meets the Tom (the distribution manager), who shows Harry the HGV he will be driving. Harry is told he is to deliver an order of furniture to a customer in Edinburgh that same day and it is up to Harry to decide how he will make the delivery in that he can choose his delivery route. The only requirements placed on Harry are that he takes the mandatory rest breaks applicable to a HGV driver, completes the delivery before the customer’s shop closes at five pm, and then phones Tom afterwards to confirm the delivery is complete. Harry is given the customer’s address after which the furniture company’s staff then load all of the furniture onto the HGV. Harry chooses the route he will take and sets off on his delivery. He arrives at the customer’s address at three-thirty pm. The customer unloads the furniture from the HGV while Harry phones Tom to advise the delivery has been completed. Harry returns the HGV to the clients, and after they have checked the HGV and confirmed all is in order, Harry’s engagement for that client has now ended.
In this scenario, Harry has not been subject to (or to a right of) any form of supervision as to the manner in which he provided his services. Nobody was present to supervise or direct him whilst he was undertaking the delivery, nor was anyone doing this from afar. The only form of direction Harry received was being told where to make the delivery; it did not extend to telling Harry the manner in which he must make that delivery. Harry was not subject to (or to a right of) control from anybody as to the manner in which he provided his services. He had the freedom to choose how he would make the delivery himself without anyone telling him (or having a right to tell him) how he must do it.
Although Harry was told he must take rest breaks, this is a mandatory regulation for health and safety purposes and is recorded on tacographs regardless as to whether the worker is employed or self-employed. HMRC does not regard telling a person they must abide by such mandatory regulations will result in that person being subject to (or to a right of) supervision, direction, or control as to the manner in which they provide their services. The Agency legislation will not apply in this scenario.
Harry arrives at the client’s furniture factory and meets George (the distribution manager), who shows Harry the Company HGV he will be driving. George then tells Harry he is to deliver furniture to customers in Sheffield, Birmingham, Nottingham, and Liverpool that same day. Harry is told he must phone George after each delivery and report back to the factory when all deliveries are complete, when he must submit the relevant paperwork. Harry’s delivery schedule and route are pre-determined by the client, which dictates the number and order of the deliveries and also states Harry must take the appropriate rest breaks. George tells Harry he must supervise the loading and unloading of his HGV, making sure all items on the delivery note are loaded and safely secured before transit and the correct items are unloaded during each delivery. Harry is also told he must ensure all customers sign the delivery orders to confirm the receipt of their goods. George also tells Harry he must follow the traffic reports and, if Harry encounters any disruptions, he must phone the client as they may need to change the order of deliveries and decide what alternative route Harry must take.
Harry commences the deliveries and whilst travelling to his first delivery the client contacts Harry to advise the order of deliveries has been changed and Harry is required to change his scheduled second delivery to become the last delivery of the day. Harry notes his delivery schedule accordingly. Throughout the day, the client contacts Harry every two hours to establish his progress and make sure the deliveries are being made in the specified order. Harry completes all deliveries as dictated; he obtains the required customer signatures for all deliveries received, and he then reports back to the client’s factory afterwards, where he submits his completed paperwork to the client. Harry’s engagement with that client is now complete.
In this scenario, the client has given Harry direction as to how he must do his work by stipulating the order of deliveries and changing that order of deliveries. Harry had no freedom to choose the order in which the deliveries were made and had to follow instructions. Harry was also subjected to control as to the manner in which he did his work in that he was required to complete and submit paperwork, supervise the loading and unloading, and report back to the client when each delivery was made. Harry had no freedom to choose how the job would be done, this was all dictated to him and he had specific procedures he must follow throughout. Harry was also supervised throughout by the client telephoning him every two hours to establish his progress and ensure he was providing his services in the manner required by the client.
In this scenario, Harry has been subject to supervision, direction, and control as to the manner in which he provided his services. The agency legislation will apply here, provided the other conditions of the legislation are also met.