Agency Worker - Specific Query

[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...

[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?

[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

[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.

[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...

[LisaContractorUmbrella]

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

[malvolio]

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]

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]

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.

[tigerinhunt]

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??

[tigerinhunt]

@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]

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...

[v8gaz]

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?

[malvolio]

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.

[tigerinhunt]

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,