EIM32134 | Travel expenses: travel for necessary attendance: fixed term appointments and agency workers: fixed term appointments: site-based workers: reasonable to assume

Section 339(5) ITEPA 2003

When you apply the fixed term appointment rule to decide whether a workplace is a permanent or a temporary workplace you need to be alert to the possibility that the actual period of time the employee spent at a workplace was unexpected. You need to consider for how long the employee could reasonably have been expected to work at that workplace. Similar considerations apply to the 24 month rule, see EIM32100.

For example, an employee is taken on under an open-ended employment contract and the expectation is that he or she will remain working for the employer at a succession of different sites. Unfortunately, after 12 months the employer gets into financial difficulties and the employee is laid off having worked at only one site. Even though the employee has only worked at a single site for the duration of the employment that site is a temporary workplace until the employer gets into financial difficulties. Until then it is reasonable to assume that the employee will work at more than one site.

Another example would be an employee taken on to work only at a single site for a short term employment. However, towards the end of work at that site the employer obtains another contract at a different site and offers the employee work at that site. Although the employee works at more than one site in the course of the employment the first site is a permanent workplace until the employer offers work at the second site. Until then it is reasonable to assume that the employee will work at the first site for all or almost all of the duration of the employment.

In most cases you will be able to accept that the period for which an employee works at a particular site is the outcome that it was always reasonable to assume. However in some cases you may need to look more deeply and you should look objectively at all of the available evidence. If an employee has in fact only worked at a single site for the duration of the employment you should treat that site as a permanent workplace unless the employee can produce convincing evidence that it was likely that he or she would have been kept on to work at other sites. Oral assurances said to have been given by, for example, the site foreman will not be sufficient.

Conversely, if the employee has worked at more than one site you should accept, unless you have convincing evidence to the contrary, that each site (except perhaps the last, see EIM32133) was a temporary workplace. Such evidence may consist of knowledge of the employer’s policy on retaining employees.

From 6 April 2016, new tax provisions for the treatment of travel and subsistence expenses for workers who personally provide services through ‘employment intermediaries’ apply. The employment intermediaries travel expense provisions mean that each engagement undertaken by a worker who personally provides their services through an employment intermediary will be considered a separate employment for the purposes of travel and subsistence. This will mean that generally no relief will be given for home-to-work travel costs and associated subsistence. Detailed guidance on the employment intermediaries travel expense provisions can be found in the Employment Status Manual at ESM5500.