Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - product demonstrator
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
Patricia is an experienced product demonstrator who is experienced in performing product demonstrations for numerous clients, having promoted products such as kitchenware, hardware, technology, and children’s toys. Patricia obtains work through an employment business that specialises in product demonstrators.
A department store takes delivery of a stock of new food blenders from a leading kitchenware manufacturer and is keen to promote this new product to generate sales. They decide to engage a product demonstrator to provide “in store” demonstrations over four consecutive weekends, Saturday and Sunday. The department store contact Patricia’s employment business and ask them to supply an experienced product demonstrator. The employment business contact Patricia who agrees to accept the engagement.
Patricia arrives for work on her first day and meets Alice, the sales supervisor for the kitchenware department, who tells Patricia exactly what work she wants her to do. It will entail performing product demonstrations throughout the day to show how the blender can be used. As the promotional offer includes a manufacturers free recipe book for making smoothie drinks with each blender purchased, Patricia will be required to make smoothies for customer sampling from that recipe book, sourcing the fruits she will use from the department stores own greengrocery department. Alice tells Patricia she must be smartly dressed and will be provided with one of the stores uniform blouses which she must always wear. Patricia is also required to: (i) present herself in a polite and positive way to the customers, (ii) stick to the provided script when talking about the product during demonstrations, (iii) be sufficiently knowledgeable about the product to answer customer questions, (iv) be punctual to ensure demonstrations run to the stores specified timings, (v) make a varied selection of smoothies, ensuring sufficient fruit is always at hand, and (vi) make sure all equipment and work surfaces are cleaned between demonstrations. Alice also tells Patricia three sales assistants will be present on the shop floor but if they are exceptionally busy Patricia may need to help them out between her demonstrations by handling general sales through the till and retrieving items from the stockroom, as co-ordinated and instructed by Alice.
Patricia delivers her product demonstrations as required, sticking to the store’s specified timings throughout. Throughout her engagement, Patricia does not actually get called upon to handle any customer sales or retrieve any items from the stockroom; she simply does her demonstrations and completes her engagement at the end of the fourth weekend.
In this example, Patricia has not been subject to any supervision by anyone whilst undertaking her demonstrations. The store’s requirements were stated by Alice at the outset and being an experienced demonstrator, Patricia was then left to perform her demonstrations, aware that that nobody would be watching over her throughout. However, Patricia could not decide how she performed the demonstrations as this was dictated in advance by the client who directed and controlled how she would provide her services by specifying that she wear a uniform blouse, that she must always follow a specific script, and be sufficiently knowledgeable on the product to answer customer questions. Patricia also had to stick to scheduled timings for her demonstrations, prepare different types of smoothies from a particular recipe book, regularly clean the equipment and work surfaces, and ensure she had sufficient fruit on hand to work with. Patricia was therefore subjected to direction and control as to the manner in which she provided her services.
Aside from actually being subject to direction control, Patricia was also subject to a right of supervision direction and control as to the manner in which she provided her services, because Alice was in a position to dictate how Patricia provided her services had she been required to handle till sales and retrieve items from the stockroom, even though this work did not actually materialise in practice (see ESM7315). That right of supervision, direction, or control as to the manner in which the services were provided and the actual control that was imposed upon Patricia when she did her demonstrations, are each in their own right sufficient for the agency legislation to apply, provided of course the other conditions of the legislation are also met.