Agency Worker - Specific Query

[malvolio]

Interesting Mal - still concerns me though how many people think that what's written in a contract will be a magic shield against IR35 or the AWR

We're talking about agencies here (or to be precise, the legally advised, risk averse, unimaginative bean counters in the agency boardroom). It will take them a while to realise that the protection they need is easily delivered by ensuring the working practices and the contracts align all the way up the chain and that their clients need to be told to ensure they treat contractors as suppliers not temps. When they do, things will become much clearer all round.

The point has not been missed elsewhre, may I add...

[craig1]

One thing that intrigued me months ago and I forgot to chase it up a the time... The BIS guidelines state:

When is an individual in a profession in or out of scope?
The definition of an agency worker excludes those who are in a "profession or business undertaking carried out by the individual" where the hirer is a client of customer of the individual (i.e. a genuine business to business relationship). A profession is normally someone who is certified by a professional body such as a doctor or lawyer. Normally a professional or a person in business providing services to a client or customer is not working under that person's supervision or direction. But it is still possible for someone in a profession or in a business to be an agency worker if there is no such client or customer relationship.

Now, I got myself that BCS Chartered IT Professional thingy back in 2004, that does qualify me as a certified professional as it's from a chartered body. So if I put myself out as a CITP can I assume that this does this genuinely help distance me further from AWR?

If so, it'll be probably the first genuine benefit I've had out of having CITP! Feels a bit dirty though, calling myself a certified professional with that. I feel more professional with my IEEE membership but that's not a certified profession in the UK.

[LisaContractorUmbrella]

We're talking about agencies here (or to be precise, the legally advised, risk averse, unimaginative bean counters in the agency boardroom). It will take them a while to realise that the protection they need is easily delivered by ensuring the working practices and the contracts align all the way up the chain and that their clients need to be told to ensure they treat contractors as suppliers not temps. When they do, things will become much clearer all round.

The point has not been missed elsewhre, may I add...

Trouble is though, if the clients were prepared to do that God wouldn't have invented temps in the first place

[tigerinhunt]

My agency has come back to me saying that "My relation with them is B2B" but their contract with the end client is as 'Agency Worker" and have advised me to take professional advice. I completely understand the difference between IR35 and AWR but as Malvolio said it that rules to test both seems to be same.

I consider myself out of IR35 but what I am concerned is about the kind of contract agency has between themselves and end client. Do you think I am overly worried about it?

[malvolio]

My agency has come back to me saying that "My relation with them is B2B" but their contract with the end client is as 'Agency Worker" and have advised me to take professional advice. I completely understand the difference between IR35 and AWR but as Malvolio said it that rules to test both seems to be same.

I consider myself out of IR35 but what I am concerned is about the kind of contract agency has between themselves and end client. Do you think I am overly worried about it?

No. You can't be bound by a contact you are not party to, something that agencies seem to blithely disregard with monotonous regularity. If your contract is outside-IR35 B2B then that's it, as far as you're concerned; you're out of scope.

You could usefully ask the agency to explain on what basis they have a contract with the client stating that you are their employee, since that is what "agency worker" means in this context...

Interesting question though, and one that needs to be resolved...