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HMRC internal manual

Employment Status Manual

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Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - joiner / carpenter

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

Joiner / carpenter

John is a joiner and carpenter who usually works on small scale construction jobs. John obtains his work through an employment business which finds him regular work with clients. A construction company contact the employment business at short notice and ask for a joiner/carpenter to assist them for two weeks on a refurbishment contract they are undertaking on the interior of a church. The employment business contact John and provide him with the contact number for Steve (the project manager). John phones Steve and, after discussion, John accepts the assignment. Steve tells John to arrive on site at nine am the following Monday.

Scenario 1

In this scenario, during his initial contact with Steve, John was told the construction project entailed installing washroom and kitchen facilities in a church and the work that John was being engaged to undertake was to build an oak panelled door for the washroom and then hang it in place.

John turns up for work on his first day and meets Steve who gives John the design specifications for the door and then tells John he is free to build it whichever way he chooses, during which time he will have no interference from anyone. It is entirely up to John to decide how and where he will build the door (i.e. on site or at home in his workshop). Steve tells John his only requirements are that the door is built to specification and hung in place within the next two weeks of John’s engagement and that John contacts Steve if there are any problems/delays.

John decides to work from his own workshop at home and starts building the door. He makes swift progress and the door is completed and ready to be hung in place by day thirteen. John hangs the door in place by lunchtime on day fourteen. Pleased with his work, Steve asks John if he would mind laying some new wood flooring in the church for the remainder of his last day on the job. John is told that if he is willing to do this work he will be finishing off the flooring which another worker had almost completed and as with John’s previous work, he will be left to get on with this work without involvement from anyone. John agrees to lay the flooring and is shown where the floorboards are stored and where the flooring is to be laid. He is then left to complete laying the flooring without anyone overseeing him work or providing him with instructions and he completes this job after two hours. Having told Steve the flooring is now laid, John then leaves the site to go home. His work on this engagement has now ended.

In this scenario, it was made clear to John at the very outset that he was being engaged to build and hang a door in place which must be done within his two week engagement. John was then left to get on with building the door as he saw fit, in the knowledge that nobody would be overseeing him, or stepping in to dictate how John made and hung the door in place. Neither would anyone be telling John he was to stop building the door and undertake other work instead. Having built and hung the door in place, Steve then asked John if he would mind doing some additional work, laying wood flooring on his last day. John was told from the outset that nobody would (or would have a right to) subject him to supervision, direction, or control as to how he laid the flooring, instead John was free to choose how he did that work. The agency legislation will not therefore apply to this scenario.

Scenario 2

John attends work on site on his first day and meets Steve (the project manager), who tells him he will be working alongside the company’s team of three joiners, who are supervised by Alan (the foreman). John is told he will be required to do various joinery work, which Alan will organise and oversee being done.

The first job Alan gives John to do is laying some new wooden flooring. Alan shows John how the flooring must be laid and checks on his and the other joiners progress throughout the morning. By lunchtime the serving counter for the new kitchen area arrives on site. Alan tells John to stop laying the flooring for the time being and instead help the other joiners fit the kitchen counter in place, a job which Alan controls and oversees being done throughout. Once this job is complete Alan tells John to continue laying the flooring, which John continues to do for the next four days. Throughout this time Alan intermittently comes over to check on John’s progress and inspect his work.

On the fifth day, Alan tells John he is to remove some old wood panelling on the back wall of the church and replace it with some new panelling. Alan shows John where the panels are stored and demonstrates how to remove the existing panels and fit the new panels in place. John is then left to do this Job which takes him three days to complete, during which time Alan occasionally drops by to check that John is fitting the panels as instructed and he provides John with guidance, as appropriate.

On the eighth day, Alan tells John he wants him to hang a door on the newly installed washroom. John is very experienced at hanging doors and is left to get on with this job without any involvement or supervision from anyone. Once this job is complete, John is then told he is to help the two other joiners build and fit some new wooden steps leading up to the Altar. John is given some timber and told to cut it to specific dimensions. Alan returns after one hour to check on progress. Alan decides the steps require some wooden trim fitted around the first step and tells John to fit this once all of the steps are in place. On the ninth day, Alan tells John he is to collect some additional timber he has ordered from the suppliers and then report back to Alan when he arrives back on site. John collects the timber and upon his return, Alan shows John where he must unload and store it. On his tenth and last day, John finishes off fitting the new wood flooring after which time John’s work on this contract is now complete.

At the very outset, and throughout John’s engagement, he was told by the project manager he would be moved from job to job by Alan, who would be controlling what work John did and how he did that work. John never had the freedom to choose what work he did, when he did that work, where he did that work and most importantly (for the purposes of the agency legislation) how he did that work. This was all dictated by Alan. John performed the work that Alan assigned him and throughout Alan would generally oversee John perform that work, checking on John’s progress, just as Alan did with the other joiners in order to ensure the work was being done to correctly and to the required standard.

Although Alan did not supervise, direct, or control the manner in which John performed all of his work assigned (for example: the hanging of the washroom door), nevertheless Alan always had a “right” to supervise, direct, or control the manner in which John provided his services and that “right” alone is sufficient for the agency legislation to apply, provided of course the other conditions of the legislation are also met.