ESM2055A | Agency and temporary workers: agency legislation - provisions from 6 April 2014: how to form a view of whether Supervision, Direction or Control is present or not

The agency and T&S legislation presumes that supervision or direction or control (SDC) is present unless it can be shown that it is not - ESM2055.

When considering if the legislation applies you should:

• look at documentary evidence which will include but is not limited to contracts between the worker and the agency, contracts between clients and the agency, operational guidance and adverts.

• gather facts from enquiries with persons involved in the arrangements, which include but aren’t limited to the workers, clients and the agency/intermediary

This guidance isn’t prescriptive as the factors, information and documents you consider depends upon the nature of the engagement. The list below includes some of the information you should gather but please bear in mind this is not a rigid or exhaustive list, the information needed when considering if SDC applies will vary from case to case.

Factors and information you need to consider:

• the services the worker was originally contracted to provide and what they actually provide or do

• who the worker works with, why and when

• where the worker works, why and when

• who checks the worker’s work, when and why - establish what has been checked, by whom, why and did any work have to be re-done

• whether the worker has been moved from one job to another - when, why and by whom

• in what circumstances the worker can refuse to do work and whether they have done so

• who the worker reports to, when and why

• whether the worker has had to seek guidance from anybody to do the work and if they have had to what guidance was required, who gave it and when

Once you’ve gathered information from all relevant parties you then need to consider if either supervision or direction, or control is present.

Where there are procedures, methods, and instructions which must be followed when doing the work, it is likely that SDC is present (ESM2037).

For examples intended to explain when SDC is present, when the manner in which the worker provides the services is not subject to SDC but is subject to the right of SDC by a person, and when SDC is not present, see ESM2056 onwards.