Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - security officer
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
Rob is an experienced Security Officer who holds a regulatory Frontline SIA Licence and has largely provided his services at construction sites and corporate events. Rob uses an employment business to get him work, as this provides him with regular and varied work with numerous end clients.
A construction company has commenced building a new housing development of fifty houses. Work has started on the site, a perimeter fence has been installed, and building materials are starting to be delivered. The security company engaged to provide on site security contact the employment business and ask them to supply an experienced Frontline SIA licensed Security Officer who is prepared to work alternative night and day shifts alongside four existing security personnel on site for the next twenty weeks. The employment business contact Rob who is offered the engagement, which he accepts after the CRB checks are complete.
Rob attends the construction site on his first day and meets with the Head of Security, who gives Rob his security pass, a hard hat, and a high visibility jacket emblazoned with the security company’s name. Rob is provided with a shift rota containing the day/night shifts he will be working. He is told he must sign in and out every time he enters or leaves the site and follow the required health and safety procedures. Rob is told he will mainly operate from the security cabin at the site entrance, where he must politely greet all authorised persons entering and leaving the site, ensuring all security procedures are correctly carried out as required; including vehicle and personnel searches with the appropriate paperwork being completed. Rob must also do frequent daytime patrols and inspections on site at his discretion, provided the timings vary each day and the main site entrance remains staffed by Security Staff at all times. Rob is also told he may be instructed by the Head of Security to do additional ‘ad hoc’ duties, or change the way he does his standard duties, should the needs arise. During the evening shifts, Alan must regularly patrol the site to make sure the site entrance and perimeter fence remain intact and nothing has been disturbed. Alan must also monitor the CCTV cameras from the security cabin and he must report all security breaches immediately, following the client’s standard procedures they have in place.
Rob provided his services to the end client for the full twenty weeks, working alongside other security officers. He only carried out the standard duties as originally advised and those duties did not change in any way. There were no security breaches to report throughout the twenty weeks. Being an experienced security officer Rob did not need anyone oversee how he did his work. Nor did he need anyone to tell him each day what duties must be done, how they must be done and in what order. Whilst Rob himself had to follow procedures governing signing in/out when arriving/departing the site and also follow health and safety procedures (which could have played a part in dictating how he did his work), these are mandatory requirements for both employed and self-employed persons and are not a determining factor when deciding a worker’s employment status.
It could therefore appear at first sight that Rob was not subjected to any supervision, direction, or control as to the manner in which he provided his services. However, that was not in fact the case. Whilst Rob was not supervised by anyone during his engagement and being an experienced Security Officer, he did not require anyone to give him directions as to how he did his job (as this was dictated by the nature of the job) nevertheless Rob did not have any freedom to choose how he did all of his duties. He could not choose how to do the security checks, how to record site arrivals/departures, and how he would report any security breaches. Instead he had to follow the client’s procedures in place which dictated how this work was to be done. Rob was therefore subjected to control by the end client when doing this work. That is sufficient to make the agency legislation apply to Rob’s arrangement, provided the other conditions of the legislation are also met.
Also, whilst Rob was told he may be instructed by the Head of Security to do additional ‘ad hoc’ duties or change the way he did his standard duties and this did not actually happen, it still demonstrates that someone had a right to step in and dictate what work Rob did and how he did his work. The Head of Security would therefore have held a ‘right’ to supervise, direct, or control Rob in his work and that ‘right’ is sufficient for this condition of the agency legislation to apply - even if it is not exercised in practice.