ESM2063 - Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - locum pharmacist
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
Sarah is a fully qualified pharmacist who, for the last five years, has preferred to work as a locum, as it offers her regular work, flexibility, and various locations to work on short engagements. Sarah obtains all of her work through an employment agency.
The employment agency contact Sarah to advise there is a vacancy available to work in a privately run pharmacy/shop in a small market town. It is to provide cover whilst the proprietor/pharmacist is on holiday for three weeks. Sarah is given the proprietors contact details and they meet to discuss the engagement. The proprietor tells Sarah she will be working in the pharmacy at the rear of the shop and will be dispensing prescriptions to customers and providing advice to them as necessary. The Pharmacy also has two sales assistants who will deal with general sales, hand over the dispensed prescriptions to the customers and assist Sarah as necessary. It is agreed Sarah will take the engagement.
Sarah sets to work on her first day, and for the next three weeks she dispenses prescriptions and gives out general advice to customers. Sarah also monitors the stock levels of the medicines and instructs the sales staff to order new stocks where appropriate.
Throughout her engagement, Sarah was not subjected to any form of supervision or direction or control from anyone as to the manner in which she provided her services, nor did anyone have a ‘right’ to supervise or direct or control Sarah in her work, as she was fully qualified and very experienced in her field. Sarah was only ever accompanied in the pharmacy by the two sales assistants, neither of whom was qualified to oversee and instruct Sarah in her work. Being an experienced pharmacist, Sarah knew exactly how to dispense prescriptions and give advice to customers without needing any intervention of anyone, and she did this work as she saw fit. The agency legislation will not apply to this scenario.
However, had Sarah’s arrangement been different - whereby she had been brought in to assist the proprietor/chief pharmacist to dispense prescriptions and Sarah had also been told she might also be required to work alongside the sales staff in the shop serving customers, stocking shelves, and ordering stock as instructed - then, as would have been the case with the sales assistants, the proprietor would have had a right to subject Sarah to supervision, direction, or control as to the manner in which she provided her services and this would be sufficient for this condition of the agency legislation to be met.