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HMRC internal manual

Employment Status Manual

Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - supermarket delivery 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

Supermarket delivery driver (for on-line grocery orders)

Graham works as a driver and is willing to undertake various types of driving work. He has registered his services with an employment business that provides him with regular work. A supermarket contacts the employment business and asks them to supply a suitably qualified driver for a six-month engagement, delivering customers online grocery orders to their homes. The employment business contact Graham and he is offered the engagement, which he accepts.

Graham turns up for work on his first day and meets Laura, (the supervisor who is responsible for coordinating and overseeing the making up of all home deliveries). Graham is provided with an identification card, a polo shirt, and a jacket, all of which have the supermarkets logo emblazoned across the front. Laura tells Graham he must wear both items at all times and always be smartly dressed as he is representing the supermarket. Graham is shown the delivery van he will be driving and is told he is responsible for driving it safely and responsibly and making sure it is refuelled, clean and tidy, well looked after, and road-worthy. Graham is told his duties which entail compiling customer orders with fragile items always placed on top, which are then placed in crates that are stacked in order on the shelves inside his delivery van. Graham will then make his deliveries in accordance with a schedule he is given each day that contains the names and addresses of all customers and the specified times when each customer’s delivery can be made. Graham must stick to that schedule at all times, unless the client tells him otherwise. Should Graham ever get delayed during his deliveries, he must telephone the next customer on his delivery schedule to tell them when he expects to be there. Graham is told he must take care when loading and unloading customer orders, as they can be heavy and will often contain fragile or perishable items. In the event that any item gets broken, the customer must be told and provided with a telephone number to ring in order to get a replacement item delivered. Graham must be polite and courteous to customers at all times and must cater to their needs, which may require carrying customers’ orders into their homes. Graham is also told he will also be required to work in the store when not making deliveries and a floor manager will assign him that particular work and instruct Graham how it must be done.

Graham starts working for the client and his work largely consists of working alongside the other delivery drivers as he puts together each individual customer order and then places it into his delivery van, all under the supervision of Laura. He then makes his deliveries each day, in accordance with his delivery schedule. Often, when Graham had fewer deliveries to make, he works in the supermarket alongside the other in-store workers, undertaking various duties as instructed by the floor manager on duty. This work consists of working alongside the supermarket’s retail staff, stocking shelves in a particular order, removing out of date items, collecting trolleys, placing advertisement notices for special offers as directed, checking the aisles to remove damaged items, and cleaning up spillages.

From the start of his engagement, Graham has been subject to control as to the manner in which he provided his services. He was required to be professional and smartly dressed in the company attire, and he had no leeway to choose how he would do his work, as this was all dictated and tightly controlled by the client. This is demonstrated by the fact that he was required to compile and load the customer orders per the instructions given to him and stick to delivering them in the order dictated by his delivery schedule and report any delays to customers. In addition, the duties Graham performed in the supermarket were dictated and controlled by the floor manager on duty. Graham had no say in which “in store” duties he would perform and how he would perform those duties.

Graham was also directed in his work in that he was told where to deliver the customer and in what specific order. He could not choose which customer orders he would deliver, nor could he change the order of deliveries. Also, the floor manager on duty in the supermarket would direct Graham in his work by moving him from task to task.

Although Graham was not supervised when undertaking his customer deliveries, he was supervised by Laura whilst making up and loading the deliveries in the van and was supervised in his work by whichever floor manager was on duty when he was working in the supermarket.

The fact that Graham had to look after the vehicle and refuel it is not an example of Graham being subject to control, as this would be a mandatory requirement for all drivers, regardless of their employment status. However, for the other reasons mentioned above, Graham has been subject to a right of supervision, direction, or control as to the manner in which he provided his services and that “right” was exercised in practice. Therefore, the agency legislation will apply to this scenario, provided the other conditions of the legislation are also met.