Agency Worker - Specific Query

**malvolio** · 7 October 2011, 09:50

Originally posted by tigerinhunt View Post

Hi,

I have just found out from my agency that my placement with the client is an an Agency Worker and is not ideal for IR35.

What are the pros and cons of being an agency worker under the new legislation?

Can someone please also enlighten me what are my options to make it IR35 proof in this case. My contract with agency is IR35 friendly and so is the practice at work.

Kind Regards,

I suggest your agency finds out what the hell they're talking about. There is a full explanation on the PCG website, including the minor detail that if you're in business you're not in scope of the AWR and if you are genuinely outside IR35 that you are in business.

**v8gaz** · 7 October 2011, 09:52

Who is the agency, and are you being specifically told that you are affected by AWR or is it the standard backside covering letter that suggests you MAY be? What is the wording?

**tigerinhunt** · 7 October 2011, 10:00

Originally posted by v8gaz View Post

Who is the agency, and are you being specifically told that you are affected by AWR or is it the standard backside covering letter that suggests you MAY be? What is the wording?

sorry cannot mention the agency at the moment but earlier I was told as 'MAY BE' in the email and when I asked specifically, I have been told that I am under the agency worker and they are trying to get more information from the end client and should know more in next 12 weeks (which I think is bedding in period) or so...

**tigerinhunt** · 7 October 2011, 10:29

@malvolio : I think I am going to forward this to the agency and am also initiating talks with end client as I am sure this is not in their favour either...I want to stay out of AWR as I am a genuine business.

**tigerinhunt** · 7 October 2011, 13:32

AWR and IR35

Been looking into various documents

http://www.bis.gov.uk/assets/biscore...s-guidance.pdf

And the one from PCG.

And it is all confusing. This is not clear cut which would have been helpful. My understanding was that if you are in-AWR then you also in in-IR35 but these documents says it is not necessarily true. So if you are enitled to full paid holidays and even if you dont take them, anyone would still think you are just-like-an-employee so in-IR35.

Argument is that AWR says you are in "direction and supervision" and not in "Control" which is required by IR35. Ok I get that but how about other employee-like-benefits which makes you disguised employee.

Any thoughts??

**malvolio** · 7 October 2011, 13:59

Originally posted by tigerinhunt View Post

Been looking into various documents

http://www.bis.gov.uk/assets/biscore...s-guidance.pdf

And the one from PCG.

And it is all confusing. This is not clear cut which would have been helpful. My understanding was that if you are in-AWR then you also in in-IR35 but these documents says it is not necessarily true. So if you are enitled to full paid holidays and even if you dont take them, anyone would still think you are just-like-an-employee so in-IR35.

Argument is that AWR says you are in "direction and supervision" and not in "Control" which is required by IR35. Ok I get that but how about other employee-like-benefits which makes you disguised employee.

Any thoughts??

I keep saying this, but will have another go...

IR35 is about taxation treatment, AWR is about employment rights and conditions. They are not even vaguely related to each to other. The confusion is becuase they use the same broad-brush rules to define employment.

It is possible that in time we may get to a position where the in business test used in the AWR and the in business test tucked away in extant IR535 case law (but not in the law itself) can be used to determine both, so that if AWR doesn't apply you also aren't in scope of IR35 and vice versa. But that is a long way off right now.

"Direction" is telling you what to do. "Control" is telling you how to do it. "Supervision" is ensuring you do it. Direction is common to both IR35 and AWR and is the same thing. Beyond that, don't try and treat them as one, they aren't.

**LisaContractorUmbrella** · 7 October 2011, 14:20

Just to be slightly picky, the BIS guidance states:

"In the event of a dispute, in order to establish if a worker is genuinely in business on their own account (b2b relationship), the courts have devised a number of tests which examine the individual's circumstances and consider all aspects of the relationship, including what a contract might say or what it does not say, the expectations of the parties and their conduct, to establish the reality of the relationship. If the arrangements do not reflect the reality or are an avoidance tactic then individuals are likely to fall within the scope of the Regulations."

There have been many legal cases over the years which have been instigated to determine employment status but the wording of this paragraph in the guidance does, IMHO indicate that the powers that be have aligned the AWR to IR35

**malvolio** · 7 October 2011, 14:26

I agree the tests are the same. I disagree that at this time AWR and IR35 are conflated. But have a read of this

Hey, look at what we just did. We killed off IR35! | Contractor Accountants

**LisaContractorUmbrella** · 7 October 2011, 14:30

Originally posted by malvolio View Post

I agree the tests are the same. I disagree that at this time AWR and IR35 are conflated. But have a read of this

Hey, look at what we just did. We killed off IR35! | Contractor Accountants

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

Agency Worker - Specific Query