Agency Working Regs Questionaire

[LisaContractorUmbrella]

Let's get real. Do you think HMG are going to clarify in writing something they deliberately want left unclear...

These are not amateurs drafting these Acts. The vaguenesses in stuff like AWR, AWD and IR35 are entirely intentional. Making things black and white merely means the avoidance becomes much easier and the targets too restricted. However off the record conversations do happen, people do attend meetings under Chatham House rules, people are seconded to official committees where such things are discussed outside the actual meeting, people get to talk to ministers responsible for the intent of the law. And people can draw conclusions.

Then how on earth can you and the PCG possibly come out and make such a black and white statement - you've just defeated your own argument

[malvolio]

So then, you don't have anything other than an opinion - certainly nothing in writing from BIS

Let's get real. Do you think HMG are going to clarify in writing something they deliberately want left unclear...

These are not amateurs drafting these Acts. The vaguenesses in stuff like AWR, AWD and IR35 are entirely intentional. Making things black and white merely means the avoidance becomes much easier and the targets too restricted. However off the record conversations do happen, people do attend meetings under Chatham House rules, people are seconded to official committees where such things are discussed outside the actual meeting, people get to talk to ministers responsible for the intent of the law. And people can draw conclusions.

[LisaContractorUmbrella]

Page 5 of this - http://www.pcg.org.uk/cms/documents/...LE%20PAGES.pdf - may help, as will the foreword by Professor Leighton, as will the body of the document if you read it fully.

But we all (should) know that IR35 is a taxation assessment jusdged by taxation tribunals under HMRC whereas teh AWR is an employement one judged by employement tribunals under the BIS. So same tests, different objectives and possibly differnt outcomes from the same tests.

So then, you don't have anything other than an opinion - certainly nothing in writing from BIS

[malvolio]

So you don't have anything in writing then?

Page 5 of this - http://www.pcg.org.uk/cms/documents/...LE%20PAGES.pdf - may help, as will the foreword by Professor Leighton, as will the body of the document if you read it fully.

And we don't know that it's not an AWR/IR35 one to one as there hasn't been a test case yet - all the indicators from the guidance would say that the tests will be exactly the same

But we all (should) know that IR35 is a taxation assessment jusdged by taxation tribunals under HMRC whereas teh AWR is an employement one judged by employement tribunals under the BIS. So same tests, different objectives and possibly differnt outcomes from the same tests.

[LisaContractorUmbrella]

All the PCG's publishable material is on their website.

And just to be clear it's not a one-to-one AWR/IR35 join: there are other factors that can put you outside IR35 that may override a degree of D&C, but the level of D&C required for the AWR to be applicable means you are working as an FTE anyway. 99% of contractors aren't and that, incidentally, includes most of your clients. The only reason they are in scope of the AWR is because you employ them. I, on the other hand, like almost all LTdCo contractors don't have an employer.

So you don't have anything in writing then?

And we don't know that it's not an AWR/IR35 one to one as there hasn't been a test case yet - all the indicators from the guidance would say that the tests will be exactly the same

[malvolio]

As you have stipulated that to be outside AWR you must be outside IR35 you and the PCG have, by default, stated categorically that ALL Ltd Co contractors are outside IR35. To make that kind of statement I assume that you have something in writing from HMR&C or BIS to back it up?

All the PCG's publishable material is on their website.

And just to be clear it's not a one-to-one AWR/IR35 join: there are other factors that can put you outside IR35 that may override a degree of D&C, but the level of D&C required for the AWR to be applicable means you are working as an FTE anyway. 99% of contractors aren't and that, incidentally, includes most of your clients. The only reason they are in scope of the AWR is because you employ them. I, on the other hand, like almost all LTdCo contractors don't have an employer.

[LisaContractorUmbrella]

I'm not going over all that yet again, but the differentiator is "are you in business". That, typically, is not defined, but the intent of the AWR is to protect temporary workers supplied through an agency who employs them full time and dispatches them to the agency's clients on assignment, and not someone with a marketable skill set taking on a temporary position through an intermediate agency whose involvement is matching role to applicant and supporting the underlying commercial arrangements. Limited company contractors clearly fall into the latter group, Office Angels temps and umbrella workers into the former. Any contractor taking on a role that puts them clearly under the client's Direction and Control would be IR35 caught as well, since it is the same set of tests - and as has been said many times, that level of D&C is actually quite rare

It is the opinion of REC and PCG, after consultation with their own legal advisers and officials at BIS, that Ltd Co contractors are not the target. They would be in scope for consideration to see if the provisions apply, but the answer would almost certainly be "no they don't". Non-umbrella'd freelances need to resist this AWR nonsense, using the material I linked to earlier

As you have stipulated that to be outside AWR you must be outside IR35 you and the PCG have, by default, stated categorically that ALL Ltd Co contractors are outside IR35. To make that kind of statement I assume that you have something in writing from HMR&C or BIS to back it up?

[pmeswani]

I'm not going over all that yet again, but the differentiator is "are you in business". That, typically, is not defined, but the intent of the AWR is to protect temporary workers supplied through an agency who employs them full time and dispatches them to the agency's clients on assignment, and not someone with a marketable skill set taking on a temporary position through an intermediate agency whose involvement is matching role to applicant and supporting the underlying commercial arrangements. Limited company contractors clearly fall into the latter group, Office Angels temps and umbrella workers into the former. Any contractor taking on a role that puts them clearly under the client's Direction and Control would be IR35 caught as well, since it is the same set of tests - and as has been said many times, that level of D&C is actually quite rare

It is the opinion of REC and PCG, after consultation with their own legal advisers and officials at BIS, that Ltd Co contractors are not the target. They would be in scope for consideration to see if the provisions apply, but the answer would almost certainly be "no they don't". Non-umbrella'd freelances need to resist this AWR nonsense, using the material I linked to earlier

I was going to respond to Lisa's post to the reflect the bit in bold, but as I don't fully understand IR35, I chickened out. I'm glad my gutt instinct was on track.

[malvolio]

Not everyone that operates a one man limited company will be outside the scope of the AWR. See emails below from BIS in response to that specific query:


"Dear Lisa

As set out in the guidance generally those who are in business on their own account are out of scope of the regulations. This would be where the status of the hirer is that of a client or customer of a “profession or business undertaking” (i.e. a genuine business to business relationship). However this must be a genuine business to business and if the arrangements do not reflect the reality of the relationship then individuals are likely to fall into scope of the Regulations (e.g. despite the wording of a contract, the actual reality is that the individual is in not in business on their own account and they work under the supervision and direction of the hirer). "

"Hi ***

Thank you so much for coming back to me so quickly – it is much appreciated

I have read all the guidance for the AWR and it is my understanding that if an individual has secured a contract through an agency (so there is a tri-partite contract arrangement) and they will be working under the supervision and direction of the Hirer then they will definitely fall within scope of the AWR – would you please be able to confirm?"

"You have to look at each case on its own merits but yes, that will generally be the case"

Regards

I'm not going over all that yet again, but the differentiator is "are you in business". That, typically, is not defined, but the intent of the AWR is to protect temporary workers supplied through an agency who employs them full time and dispatches them to the agency's clients on assignment, and not someone with a marketable skill set taking on a temporary position through an intermediate agency whose involvement is matching role to applicant and supporting the underlying commercial arrangements. Limited company contractors clearly fall into the latter group, Office Angels temps and umbrella workers into the former. Any contractor taking on a role that puts them clearly under the client's Direction and Control would be IR35 caught as well, since it is the same set of tests - and as has been said many times, that level of D&C is actually quite rare

It is the opinion of REC and PCG, after consultation with their own legal advisers and officials at BIS, that Ltd Co contractors are not the target. They would be in scope for consideration to see if the provisions apply, but the answer would almost certainly be "no they don't". Non-umbrella'd freelances need to resist this AWR nonsense, using the material I linked to earlier

[LisaContractorUmbrella]

Fill it in, sign it, ignore it. It has no legal asis or standing. Nor do any of those quesions realte to whether or not the AWR applies.

However if yuo want chapter and verse, and a pro forma letter tellingthem not bo so patheric, take a look at PCG releases AWR 'Comfort Letters' to help you tell your agency you are not covered by the AWR | PCG

Not everyone that operates a one man limited company will be outside the scope of the AWR. See emails below from BIS in response to that specific query:


"Dear Lisa

As set out in the guidance generally those who are in business on their own account are out of scope of the regulations. This would be where the status of the hirer is that of a client or customer of a “profession or business undertaking” (i.e. a genuine business to business relationship). However this must be a genuine business to business and if the arrangements do not reflect the reality of the relationship then individuals are likely to fall into scope of the Regulations (e.g. despite the wording of a contract, the actual reality is that the individual is in not in business on their own account and they work under the supervision and direction of the hirer). "

"Hi ***

Thank you so much for coming back to me so quickly – it is much appreciated

I have read all the guidance for the AWR and it is my understanding that if an individual has secured a contract through an agency (so there is a tri-partite contract arrangement) and they will be working under the supervision and direction of the Hirer then they will definitely fall within scope of the AWR – would you please be able to confirm?"

"You have to look at each case on its own merits but yes, that will generally be the case"

Regards

[Clanky]

Thanks malvolio & sue ellen for the replies and link

[SueEllen]

Is this sort of questionaire now normal? What are peoples thoughts on the wording / content?

1. No

2. Ignore it. Agencies as usual don't know what they are talking about. 'For example there could be many reasons why you can or can't provide/use your own equipment at a client site and that's Health and Safety which would override any other regulations.

[malvolio]

Currently working contract for a large engineering co through an agent via my Ltdco.
Received this AWR questionaire from my agent the other week.
Decided to ignore it as i thought it wasn't applicable to my situation, but now getting it in the neck from both agent and head office for not filling it in.
Is this sort of questionaire now normal? What are peoples thoughts on the wording / content?



As you will be aware the Agency Workers Regulation came into force on 1st October 2010.
Broadly speaking these regulations afford agency workerssimilar terms to those of permanent staff doing the same job.
In order to make sure that we are complying with the regulations, we require you to confirm your individual status.
We should be grateful therefore if you could complete the undernoted questions and return a signed copy of this letter to us
within 7 days:

Yours faithfully

Talent Acquisition Manager - Europe
Clientco

Who is your employer?
Are you paid weekly or monthly? Weekly/Monthly
Do you provide your own Personal Protection Equipment? Yes/No
Are you IR35 compliant? Yes/No
Do you consider yourself that for the purposes of taxation and compliance with the Agency Workers Regulations 2010, to be self employed? Yes/No
Are you working at Clientco under a PAYE arrangement? Yes/No
Please confirm the hourly rate that you earn from your current assignment?

I hereby declare that the above information is accurate and true as of date below.

Signed

Fill it in, sign it, ignore it. It has no legal asis or standing. Nor do any of those quesions realte to whether or not the AWR applies.

However if yuo want chapter and verse, and a pro forma letter tellingthem not bo so patheric, take a look at PCG releases AWR 'Comfort Letters' to help you tell your agency you are not covered by the AWR | PCG

[Clanky]

Currently working contract for a large engineering co through an agent via my Ltdco.
Received this AWR questionaire from my agent the other week.
Decided to ignore it as i thought it wasn't applicable to my situation, but now getting it in the neck from both agent and head office for not filling it in.
Is this sort of questionaire now normal? What are peoples thoughts on the wording / content?



As you will be aware the Agency Workers Regulation came into force on 1st October 2010.
Broadly speaking these regulations afford agency workerssimilar terms to those of permanent staff doing the same job.
In order to make sure that we are complying with the regulations, we require you to confirm your individual status.
We should be grateful therefore if you could complete the undernoted questions and return a signed copy of this letter to us
within 7 days:

Yours faithfully

Talent Acquisition Manager - Europe
Clientco

Who is your employer?
Are you paid weekly or monthly? Weekly/Monthly
Do you provide your own Personal Protection Equipment? Yes/No
Are you IR35 compliant? Yes/No
Do you consider yourself that for the purposes of taxation and compliance with the Agency Workers Regulations 2010, to be self employed? Yes/No
Are you working at Clientco under a PAYE arrangement? Yes/No
Please confirm the hourly rate that you earn from your current assignment?

I hereby declare that the above information is accurate and true as of date below.

Signed