IR35 - Caught by the backdoor?
I have posted this topic in the "ask the experts" section of Shout99 and I'm hoping for an expert to comment, however, I thought I'd share it here too-
The HSE has issued guidelines to help ensure safety in the Nuclear industry, but there is a clause about "agency workers and employment status" that could be of concern to those of us in the industry.
Please refer to-
LINK to HSE website article.
In "Annex 1: Treatment of seconded and agency staff" towards the end of the clause there is the following text-
Quote-
Seconded or agency staff may in some circumstances be considered as ‘employees’ under health and safety law as opposed to ‘contractors’ as discussed in this guidance (Health and Safety at Work Act (1974) (s53(1)).
There is no single indicator of an individual’s employment status, rather it is a matter of looking at a number of factors and deciding whether on balance there is a contract of employment. Factors which need to be considered include:
1. Whether the Licensee has the power to select and appoint the individuals doing the work.
2. Whether the Licensee has the power to dismiss or suspend the worker.
3. Whether it is the Licensee which fixes the times and place of work.
4. Whether personal service is provided. A person will not normally be an employee if they are entitled to delegate the entire performance of the work to another person.
5. Whether they are formally appointed to a position within the licensee’s organisation
6. Whether they report via the management chain to the licensee and are accountable to the licensee via established management arrangements such as appraisal and development processes
However, there are still clear implications to their status that should be given due consideration by the licensee when the role of seconded or agency staff is safety related. This includes the extra potential for sudden or en bloc departure, which can be dealt with for example through careful drafting of contract terms and development of robust succession plans as appropriate to the case. In some cases seconded or agency may be paid incentive payments or otherwise rewarded by their ‘other’ employer. Care should be taken that such reward schemes do not conflict with the interests of nuclear safety at the licensed site.
If the licensee can demonstrate that the contractor is embedded to the extent that he/she is in effect an employee of the licensee, as set out above, then NII considers that the contractor need not be subject to control and oversight different from a normal employee."
Unquote.
IR35 caught by the backdoor then are we?
The HSE has issued guidelines to help ensure safety in the Nuclear industry, but there is a clause about "agency workers and employment status" that could be of concern to those of us in the industry.
Please refer to-
LINK to HSE website article.
In "Annex 1: Treatment of seconded and agency staff" towards the end of the clause there is the following text-
Quote-
Seconded or agency staff may in some circumstances be considered as ‘employees’ under health and safety law as opposed to ‘contractors’ as discussed in this guidance (Health and Safety at Work Act (1974) (s53(1)).
There is no single indicator of an individual’s employment status, rather it is a matter of looking at a number of factors and deciding whether on balance there is a contract of employment. Factors which need to be considered include:
1. Whether the Licensee has the power to select and appoint the individuals doing the work.
2. Whether the Licensee has the power to dismiss or suspend the worker.
3. Whether it is the Licensee which fixes the times and place of work.
4. Whether personal service is provided. A person will not normally be an employee if they are entitled to delegate the entire performance of the work to another person.
5. Whether they are formally appointed to a position within the licensee’s organisation
6. Whether they report via the management chain to the licensee and are accountable to the licensee via established management arrangements such as appraisal and development processes
However, there are still clear implications to their status that should be given due consideration by the licensee when the role of seconded or agency staff is safety related. This includes the extra potential for sudden or en bloc departure, which can be dealt with for example through careful drafting of contract terms and development of robust succession plans as appropriate to the case. In some cases seconded or agency may be paid incentive payments or otherwise rewarded by their ‘other’ employer. Care should be taken that such reward schemes do not conflict with the interests of nuclear safety at the licensed site.
If the licensee can demonstrate that the contractor is embedded to the extent that he/she is in effect an employee of the licensee, as set out above, then NII considers that the contractor need not be subject to control and oversight different from a normal employee."
Unquote.
IR35 caught by the backdoor then are we?
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