T Pa Pa Ca G T Ca G T A W Ra - Professional Passport · guidance does not change legislation ........

35
The Contractors Guide to The Agency Workers Regulations The Professional Passport Contractors Guide

Transcript of T Pa Pa Ca G T Ca G T A W Ra - Professional Passport · guidance does not change legislation ........

The Contractors Guide to The

Agency Workers Regulations

The Professional Passport

Contractors Guide

Crawford TempleChief Executive OfficerProfessional Passport

An Introduction to Professional Passport

Professional Passport started back in 2007 as a direct reaction to the MSC Legislation and the threat of debttransfer.

Working with HMRC to gain a full understanding of how they intended to apply the new legislation allowedus to develop the first provider audit standard of compliance in the market.

It is said that imitation is the best form of flattery and since our ground breaking work in 2007 others havetried to follow, with varying degrees of success. Professional Passport still remains the largest independentstandard of compliance across the service provider sector, as well as providing a wide range of additionalbenefits to all our members through our web portal.

Our audited and approved providers are relied on by thousands of contractors safe in the knowledge that theyhave passed our stringent assessment criteria.

For over 2 years we worked with HMRC to identify a way of formally confirming the IR35 status of assignments.We are the only organisation that has agreed this process and, now that the Chancellor has confirmed thatIR35 is here to stay, we are rolling this back out to our recruitment agency and end client members. This serviceallows our end clients to provide certainty of status to their contractors.

A year ago now we launched our Network Jobs Site, once again a first in the market. The free to post jobs sitewas designed and developed as part of our early preparation for the Agency Workers Directive and regularlycarries over 7,000 jobs.

Our latest development, Professional Passport Formations, provides an online company formations service forcontractors. This new portal allows contractors to form their own limited company electronically and providespossibly the fastest formation service available in the market. If you select business banking through Barclaysyou can effectively get your company formed for free.

We are continually developing our proposition in line with changes experienced in the market so make sureyou keep up to date by registering for our newsletters.

the new company formations service delivers ...

...the simplest and fastest online formations

www.professionalpassport.com/contractors [email protected]

• Introduction 4

• AWR Overview 6

• Executive Summary 8

•Who is covered by the Regulations 10

• Equal Treatment 12

•What Options Will Be Available 14

• The Traditional Umbrella 16

• The Swedish Derogation Umbrella Model 17

• The Limited Company Contractor 18

• Umbrella Contractors Questions and Answers 21

• Limited Company Contractors Questions and Answers 25

• Glossary of Terms 28

• Professional Passport’s Approved Providers Contact Details 34

Contents

3

guidance does not change legislation ...

... that remains as published in 2010

Introduction

4

The Agency Workers Regulations [AWR] come in to effect on the 1st October 2011. This guide has beenproduced to help Contractors, referred to as ‘Agency Workers’ within the AWR, understand what they meanand what changes they are likely to see as a result.

The guide’s primary focus is on the AWR but where appropriate it will bring other relevant pieces of legislationto your attention assisting you to operate in a compliant way.

Guidance is provided to help organisations interpret legislation and understand the intentions behind it. Oftenthere can be conflicts where the legislation leads you to draw one conclusion whereas the guidance maysuggest a slightly different scenario; this is common place and the courts will always look to the legislationfirst, and only refer to the guidance where there is ambiguity in the drafting of the legislation.

Throughout the guide we attempt to highlight these areas of mismatch and suggest the range of options youmay be presented with and where these options fit across a range of risk profiles. Where legislation andguidance are aligned this represents the lowest risk. Where legislation and guidance differ there are likely tobe a wide range of options emerging and we will attempt to explain these.

As well as providing an explanation and commentary across the key aspects of the legislation and guidance,we have also included what we hope you find to be useful and practical tools to help you through the AWRmaze.

It is important you read the full detail to help you understand how you can then use the tools and operatewith a risk profile aligned to your position.

This guide provides information on the following topics:

• The AWR

• The Traditional Umbrella Model

• The Swedish Derogation Umbrella

• The Limited Company Contractor

• Other Relevant Legislation

You may also find it useful to refer to our Guide to IR35 and our Guide to Operating Structures forfurther information.

Disclaimer StatementThe content of this guide is for guidance only and is not designed to replace your professional advisers or replace the need for

professional advice. Whilst every care has been taken to ensure its accuracy this is a new and complex area that will only becomeclear as the courts make their rulings. In all cases you should seek your own legal and professional advice for your own situation.

CopyrightAll rights reserved; any unauthorised copying will constitute an infringement of copyright.

www.professionalpassport.com/contractors [email protected]

5

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“The unique, tripartite relationship between agency worker, agency and hirer is a key feature ofthese Regulations and who is covered by them.”

Overview of AWR

6

The Agency Workers Directive made its firstappearance in 2000 under the Greek EU Presidency.For the next 7 years many attempts were made tore-introduce the Bill without success.

In 2008, with the support of the Labour Party anda deal agreed between the TUC and CBI, the Billwas finally passed and the Agency Workers Directivebecame European Law.

Under the agreement the UK was now in a positionwhere they had to adopt the law and put therequired legislation in place, coming into effect on1st October 2011; all EU Countries must implementtheir own version of the rules by no later than 5thDecember 2011.

In 2009 the Government entered into a series ofconsultations on the proposed regulations with thefinal Regulations being published in January 2010.

In the run up to the General Election in May 2010the Conservative Party made it clear that theybelieved Labour had gone way beyond therequirements of the Directive and had “gold plated”the Regulations. They promised to undo this if theycame to power.

The Conservatives did come to power, all be it asthe major party in a coalition, and then realised theywere powerless to make any amendments to the

Regulations.

Any attempts to amend the Regulations wouldrequire the agreement of both the TUC and CBI.The Government were reluctant to reopennegotiations as important concessions gained, suchas the 12 week qualifying period, could be lostresulting in even greater issues and complexity.

As a result the Government announced that theywould use the guidance to clarify the Regulationsand attempt to address, and answer, the manyissues that had been raised.

This approach has resulted in the position we findourselves in today with guidance that is attemptingto address some of the short comings of theRegulations and, in some cases, presenting adifferent interpretation than the Regulationsthemselves.

Contractors are quite used to this situation as theyhave been facing exactly the same scenario withIR35 Legislation for over 10 years.

The principles of the Regulations are straightforward and where openness and transparencyexist they should not represent too great achallenge; things become a little more complicatedwhere this is not the case.

www.professionalpassport.com/contractors [email protected]

Executive SummaryWe have provided this high level summary for yourconvenience; there is a lot of detail behind this andwe would advise that you read the relevant sectionsof the guide to gain a complete understanding.

Umbrella Contractors• In the majority of cases umbrella

contractors will be considered ‘in scope’of the Agency Workers Regulations.

• You may have to change umbrellaprovider as many recruitment companieswill move to a restricted preferredsupplier list; check with your recruitmentcompany before signing up with aprovider.

• If equal pay cannot be demonstrated youwill be offered compensation to give upyour right to equal pay.

• If equal pay is not achieved you will haveto operate through an umbrella knownas a Swedish Derogation Umbrella; this issimilar to a traditional umbrella except itpays you compensation for giving upyour rights to equal pay.

• If you don’t like the compensationoffered either negotiate a better rate orwalk away.

• In the case of a dispute it is thecontractor that has to bring the case,usually within 3 months of the end ofthe assignment or when they becameaware of an issue.

• You should raise any issue directly withyour umbrella provider, or recruitmentcompany, to try and resolve it beforeproceeding to an employment tribunal.

• Where you have agreed terms at outsetand these were accurate, open andtransparent you are unlikely to bring anysuccessful claims.

• You will find that some assignments arenot available to umbrella contractors asend clients can, and will, instruct theirrecruitment partners that they only wantto engage with contractors who operatethrough their own limited company.

8 [email protected]/contractors

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Executive SummaryLimited Company Contractors

• There is no formal link between AWRand IR35 although if you are ‘in scope’of AWR then you will be inside IR35.

• You are likely to be asked to confirm whether you operate ‘in business onyour own account.’

• If you confirm that you are in businesson your own account, and the clientdoes not supervise or direct you, thenyou will be out of scope of the AWR.

• Out of scope contractors are likely to beprovided with IR35 neutral contracts toallow them to assess the actual statusbased on the arrangements betweenthemselves and the client.

• In scope contractors, those not inbusiness on their own account or underthe supervision and direction of the endclient, will be provided with separatecontracts where the terms are likely tofail any IR35 tests.

• In scope contractors will be caught byIR35 and recruitment companies may ask for an accountant’s confirmation thatthe deemed payment calculation is beingapplied to the income from thatassignment.

• In the case of a dispute it is thecontractor that has to bring the case,usually within 3 months of the end ofthe assignment or when they becameaware of an issue. You should alsoconsider the potential impact on yourtax status.

• Where you have confirmed, at outset,that the relationship is based on youbeing in business on your own accountyou are unlikely to bring any successful claims.

You will also find further information and links atthe end of our Glossary of Terms section towardsthe end of the guide.

9

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The intentions of the Regulations are quite straightforward:

“To provide agency workers the entitlement to the sameor no less favourable treatment with respect to basicemployment and working conditions, if and when theycomplete a 12 week qualifying period.”

In most cases we believe it will be clear where theRegulations apply although there are a number of greyareas and these will be left for the courts to decide.

Exclusions to be aware of:

• Workers operating through their ownlimited company that are also in businesson their own account and not under thesupervision or direction of the end client.[We cover this aspect later in the guide.]

• Directly recruited workers

What does this mean in practice?

There are two key stages;

• Day 1 rights for all agency workers

• Equal treatment after 12 weeks

Day 1 Rights

All Agency Workers [contractors to you and I] from 1stOctober 2011 will be entitled to access the samefacilities and information on job vacancies ascomparable permanent employees.

Some of the examples given are: staff canteen, carparking and child care facilities.

What changes are contractors likely to see?

• Where you fall within the scope of theAgency Workers Regulations you will also becaught by IR35.

• Recruitment agencies are likely to move torestricted preferred supplier lists for umbrellaproviders that could mean contractors haveto operate through one of the selectedumbrella providers.

• Contractors operating through their ownlimited company will have to confirm theirstatus.

“an individual workingthrough an umbrellacompany, who findswork via a TWA, iscovered by theRegulations.”

Who is covered by The Regulations

“a temporary workagency supplies agency

workers to worktemporarily for a third

party.”

“an individual who has acontract with a

Temporary Work Agencybut works temporarilyfor and under the

direction and supervisionof a hirer.”

“The hirer is a privatelimited company

[partnership or soletrader] or public sectorbody that books agency

workers through atemporary work agency.”

“fall within thedefinition of TWA in

view of theirinvolvement in thesupply of individualsand/or their role in

forwarding payments.”

10 [email protected]/contractors

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Name

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Diane Singh

Neil Sparks

Client

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Electrical Install Recruitment

Role

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Management Accountant

Grade 2 Electrician

Previous Assignment

2 weeks

0 weeks

14 weeks

Day 1 rights

Access to car park

None

Creche

Comparator Rate

£17.50 per hour basic

£230.00 per day

Swedish Derogation

Next Agency Update

11 days

23 days

4 days

Current Assignment

3 weeks

7 weeks

9 weeks

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Equal Treatment After 12 Weeks

Telephone:01635 573551

Equal treatment after 12 weeks

After 12 weeks in the same job/role then theAgency Worker acquires additional equal treatmentrights such as:

• Pay and bonuses• Duration of working time• Annual Leave

“the requirement is simply to treat the worker as ifhe or she had been recruited directly to do the samejob.”

What is comparable pay?

The guidance makes it clear that comparable paydoes not have to be a direct comparison made to aworker and can actually be reference to the payscales and contractual entitlements for permanentworkers within a company.

Will all companies match pay andentitlements?

The Regulations require companies to provide‘comparable pay’ but they do recognise that in asmall number of cases this may not be possible.

The definition of equal pay includes more than justa comparison of salary and extends to include bonusentitlements as well as any additional holidayentitlements over and above the statutoryminimum. These additional tests will mean that insome cases hirers are not able to provideconfirmation that comparable pay has beenachieved.

Where a hirer is unable to offer, or confirm,comparable pay then the Regulations contain aconcession known as The Swedish Derogation.

The Swedish Derogation is explained in detail laterbut does allow a hirer to engage contractorswithout demonstrating equal pay provided certainconditions are met.

Disputes over pay and compliance

Contractors will have to raise any issues or concernsas soon as they arise, as typically a case must bebrought within 3 months of becoming aware of theissue, or 3 months from the end of the contract orassignment.

Any claims of non compliance to the Regulationswill be heard by the Employment Tribunals.

Both the BIS guidance and the guidance on theEmployment Tribunals website make it clear that inall cases the parties should try and resolve anydisputes without bringing a case to the Tribunal.

The minimum award will generally be equal to twoweeks pay, with no maximum.

The Tribunal also has the ability to award penaltiesup to a maximum of £5,000. The BIS guidanceoutlines examples where penalties will apply andthese predominately relate to where there isevidence of anti avoidance tactics or intentionalabuse.

Whenever a disputearises attempts

should be made toresolve without the

need for furtheraction or a claim

being made to theTribunals Office.

Typically thecontractor has 3

months to make theirclaim. If accepted allparties will be asked

to formally respond. Ifno response is madethe Tribunal is likelyto make a Default

Judgement.

In the majority ofcases the minimumaward is two weeks

pay; there is nomaximum.

Penalties of up to£5,000 can also be

imposed.

12 [email protected]/contractors

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13

What Options Will Be Available?Following the implementation of AWR there arelikely to be five main options available tocontractors;

• Agency PAYE, available today buttypically only used by contractors on lowrates

• The Traditional Umbrella, as we havetoday

• The Swedish Derogation Umbrella, usedwhere comparable pay cannot bedemonstrated

• Own limited company within the scopeof the Agency Workers Regulations

• Own limited company out of scope ofthe Agency Workers Regulations

We will now look at each of these in more detail.

Agency PAYE

Recruitment companies that deal with lower paidworkers tend to still offer this option to theircontractors although there has been a move inrecent times towards umbrella companies.

If you are paid a low rate and have low expensesthen this could be a route to investigate.

The recruitment company will offer a different ratefor the assignment if you work through their payroll;the rate will be lower than the rate offered if youwork through an umbrella, as the recruitmentcompany has to account for expenses such asemployers National Insurance, holiday pay andstatutory benefits.

Traditional models do not allow workers to claimexpenses when using an agency payroll.

Your overall return, ie. the amount you get in yourpocket, should be similar to the returns from anumbrella.

Contractors on rates over £10 per hour with regularexpenses to claim are likely to benefit from using anumbrella.

Umbrella Companies - General

There are some key points you should be aware ofin the operation of umbrella companies:

• ‘In Scope’Contractors operating through umbrellacompanies are likely to be caught by theRegulations, as they are typically underthe supervision and direction of thehirer; this is known as ‘in scope’.

• National Minimum Wage ComplianceAll umbrella companies must complywith the National Minimum Wage rules.

This will mean that contractors on lowerrates will be unable to work through anUmbrella as the umbrella would not beable to apply a compliant pay calculationand still meet NMW.

The minimum rate that allows a workerto operate through an umbrella isdependant on the umbrella margin.

Contractors on rates on or around theminimum rate will be unable to claimexpenses and therefore have no taxsavings to offset the umbrella provider’smargin.

• Claiming ExpensesOne of the main selling points forumbrella companies is that their workersare able to claim a range of expensesthat are not generally available topermanent employees or workersoperating through traditional agencypayroll models.

In order for a worker to claim expensesfor travel and subsistence from theirumbrella company their are a number ofcritical steps that must be achieved forexample;

• The umbrella must operate withan overarching employmentcontract

continued >

14 [email protected]/contractors

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< continued

• The contractor must confirmtheir intention to carry outmultiple assignments whilstemployed by the umbrella

• The contractor cannot be based,or have an expectation to bebased, at a site for over 24months

Workers who are unable to meet all therequirements will be prevented frommaking any travel and subsistenceexpense claims.

Some examples where contractors willbe unable to claim any travel andsubsistence expenses on an assignmentfrom outset are:

• A temp to perm assignment

• Where you have no intention ofcarrying out multipleassignments and are using theassignment to fill a gap before

starting a new job

• Where the contract is over 24months from outset

Contractors are also be prevented fromclaiming expenses during their noticeperiod with the umbrella as underHMRC rules the final workplaceautomatically becomes classed as apermanent workplace; travel andsubsistence expenses are not allowed toa permanent place of work.

The Traditional Umbrella

The Traditional Umbrella model is the model thatexists on the market today. It continues to work wellpost AWR where the contractor is receiving equaltreatment aligned to the terms of the Regulations.

Contractors should be aware that ‘pay’, for thepurposes of The Agency Workers Regulations,includes basic salary, assignment bonuses andexpenses paid by the umbrella. We have providedan example payslip for you to demonstrate this.

What Options Will Be Available?

16 [email protected]/contractors

The Swedish Derogation Umbrella

This is the new version of an umbrella modelimplemented as a direct result of the AWR. Themodel is designed to work where comparable paycannot be demonstrated.

As the requirement to compare pay has beenremoved, the Regulations contain additionalrequirements and safeguards to prevent abuse.

The Swedish Derogation model is not a light touchumbrella; all the processes required to keep theTraditional Umbrella compliant are also requiredwithin the Swedish Derogation model including;

• Overarching employment contracts

• National Minimum Wage compliance

• Rules on expenses

There are also some additional obligations that haveto be met, including;

• Gaining a contractor’s confirmation thatthey are happy to be removed from thepay comparison requirements and thecompensation offered for giving up thisright; this has to be agreed before theassignment commences

• Contractors must be paid betweenassignments as their compensation forgiving up their right to equal pay.

Pay Between Assignments - What does thismean in reality?

The intentions seem quite straight forward; after theinitial qualifying period, [12 weeks], has beenpassed, you will be entitled to additional pay if youfind yourself out of work at the end of theassignment.

Whilst the Regulations state that you must be paidwhen you are between assignments ascompensation for giving up your equal pay rights,and that this has to be agreed before youcommence the assignment, there is significantambiguity around the levels of compensation thatshould be offered; ultimately it will be up to thecourts to decide what they deem as compliant.

What is considered acceptable is also likely to bedriven by market forces as it is the contractors thathave to accept any offer of compensation. Whilstrefusal of an offer may result in the loss of theassignment if you feel the terms offered are not fairthen do not accept the offer.

It is the contractor that has to raise any dispute.Before taking a dispute to an Employment Tribunalthe contractor will first need to raise this first withtheir employer, the umbrella. If the terms agreed atoutset were clearly stated it will be difficult to bringa successful claim.

To prevent abuse you too have to meet certaincriteria:

• You must be available for workThis is likely to be more than just sayingyou are available. Some umbrellas mayrequire you to attend their offices and inall cases you are likely to have todemonstrate that you are activelyseeking work.

If you fail to meet your obligations, andthese will be set out clearly in thecontract of employment, then you willfail to qualify for your pay betweenassignment compensation.

• You must accept suitable workWhen you commence your engagementwith a Swedish Derogation Umbrella youwill agree the parameters of suitablework. This is likely to reflect the keyterms of your initial assignment andinclude aspects such as hours,geographical location, type of work etc.

When an assignment ends you may beoffered work that falls within theparameters of being ‘suitable’; if yourefuse this work you are unlikely toreceive any pay between assignmentpayments.

You may also find that some umbrellasalso retain the right to end your contractunder these circumstances withoutpaying you pay between assignmentcompensation.

• You lose your entitlement to compensation if you resign

What Options Will Be Available?

17

The Limited Company Contractor

A limited company contractor can be either ‘in scope’or ‘out of scope’ depending on their business status.

Contrary to many of the earlier publications, contractorswho operate through their own limited companies arenot automatically out of scope.

Determining ‘In Scope’ or ‘Out of Scope”

The guidance is [intentionally] vague in providing cleardirection for determining whether an assignment takenby a contractor operating through their own limitedcompany would be in or out of scope.

It now avoids referring directly to IR35; the reference toHMRC’s Employment Status Indicator tool has beenremoved and is now replaced with a link to Directgov.

There are however a number of points that are clear:

• A contractor operating through theirown limited company on an assignmentthat is outside IR35 is likely to beconsidered outside the scope of theAWR.

• Contractors on assignments that areinside IR35 are not necessarily caughtby AWR.

• It is the contractor that has to bring a casewhere a dispute arises and they mustconsider the impact on their tax status.

It is this last point that is likely to determine theapproach taken to assessing the status for contractorswho operate through their own limited company.

Contractors who operate through their own limitedcompany are entirely responsible for assessing the IR35status of their assignments and, depending on theoutcome, applying the appropriate tax regime.

Where a contractor assesses an assignment as outsideof IR35 they must also be outside of the scope of TheAgency Workers Regulations.

Where a contractor assesses their status as within IR35they could still technically be outside the scope of theAWR although in these case most are likely to beconsidered within the scope of the Regulations.

What Options Will Be Available?

18 [email protected]/contractors

As it is the contractor’s responsibility to determinetheir own IR35 status, and they hold all theconsequences for a wrong assessment, recruitmentcompanies are likely to ask contractors to confirmtheir status in relation to the Regulations.

Recruitment companies are likely to have twoversions of contract available for contractors whooperate through their own limited company;

• IR35 NeutralThis is the version of contract that wouldbe provided to all contractors whooperate through their own limited company and confirm that they are‘out of scope’ of The Agency WorkersRegulations.

As the name suggests it is a contractwhere the key terms would be

\ considered neutral in terms of IR35. Theactual status would be established by anexamination of the actual workingrelationship that exists between thecontractor and end client.

If the contractor then went on to decidethat the assignment was outside of IR35they could remunerate themselvesthrough a mix of salary and dividends.

• IR35 FailThis is the version of the contract thatwould be provided to all contractorswho operate through their own limitedcompany and confirm that they are ‘inscope’ of The Agency WorkersRegulations.

As this contract would place anassignment within IR35 the contractor islimited to taking all the income from thisassignment after applying the DeemedPayment Calculation; this prevents thepayment of dividends and taxes theincome fully under the PAYE regime.This is the least favourable tax positionfor contractors.

continued >

What Options Will Be Available?

19

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In some cases the recruitment companymay ask the contractor, or theirprofessional adviser/accountant, toconfirm that the deemed paymentcalculation is being applied.

The most appropriate operating structure for acontractor should be determined by a review oftheir individual circumstances, objectives andintentions. We have produced a Beginners Guide toOperating Structures that will provide furtherinformation to help you decide what could be themost appropriate structure for you.

MSC Legislation and Debt Transfer

MSC legislation came into effect in 2007 and, insimple terms, it was designed to ensure thatcontractors who operate through their own limitedcompany have to take responsibility for the

company, preventing specialist providers fromoffering the same levels of support they didpreviously.

Where the support fails, the contractor will besubject to additional tax liabilities as effectively allthe income received has to have full PAYE tax andNational Insurance applied.

The legislation also allows HMRC to transfer acompany debt to the individual which means thatthere is no way to escape it, once assessed.

Professional Passport helps contractors in this area;we have a range of accountancy service providersthat have been audited and approved against therequirements of the MSC legislation.

Many recruitment companies will point contractorsto our listings as they, too, see this as the safestroute for selecting a compliant provider.

What Options Will Be Available?

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20 [email protected]/contractors

Umbrella Contractors Questions and Answers

21

Possibly

If the assignment is confirmed as comparable paythen you will be able to use a traditional umbrella.

Many recruitment companies are looking to workwith a restricted number of umbrella companies, asthis makes their compliance checks andadministration easier, so if your umbrella companyis not on the list then the recruitment company mayrequire you to move to one of their selectedproviders.

If the assignment is offered under The SwedishDerogation it is even more likely you will have tooperate through an agency specified provider. Therecruitment companies will be working closely withtheir selected providers to agree how the SwedishDerogation should operate.

Your recruitment company should inform you whenyou first enquire about a role.

Can I still use my umbrella company after 1stOctober 2011?

How will I know if my assignment is based onequal pay or Swedish Derogation?

Umbrella Contractors Questions and Answers You are going to find a wide variety of optionsprovided to you depending on your sector,recruitment company, end client and umbrellaprovider.

Some companies have decided to only offerSwedish Derogation contracts and could offer an allinclusive rate which also includes yourcompensation, known as pay between assignment.This could be paid to you in advance and could bein the form of loans.

As the regulations are new and untested there is noclear definition of what is compliant; over time thiswill change. The simple fact is that as long as it ismade clear to you, at outset, what thearrangements are and what you can expect then ifyou find these acceptable take up the position.

If you are happy with the offer, and take it. If youdon’t like the terms of the arrangement then don’tagree to them; walk away and find anotherassignment.

Yes.

If you are not happy with the terms you do nothave to accept them. You could try to negotiatethem; failing that you will have to walk away fromthe assignment.

Before you start the assignment.

This will depend on a number of factors:

• You must review the terms you agreed at outset; some providers pay you the paybetween assignment compensation as anadvance whilst you are on assignment.

• You may have conditions in your contractof employment that must be met by youto demonstrate that you are available forwork and therefore qualify for the paybetween assignment compensation.

• If you have been asked to apply for jobsand have not done so that too could be acondition of your compensation, so longas the jobs were in line with thedescription of suitable work in yourcontract.

In all cases if you have doubts we suggest you raisethese directly with your umbrella provider.

My recruitment company has confirmed thatmy assignment will operate under theSwedish Derogation; what compensationshould I get for giving up my equal pay rights?

Can I refuse to accept the terms if I don’t thinkthey are fair?

When must I agree the terms of employmentand compensation with my SwedishDerogation umbrella?

I work through a Swedish DerogationUmbrella and I am now between assignmentsbut not being paid is that correct?

22 [email protected]/contractors

Umbrella Contractors Questions and Answers I have been told that an assignment I amgoing for is only available to contractors whooperate through their own limited companycan this be correct?

Yes

One of the potential consequences of The AgencyWorkers Regulations is that some end clients willinstruct their recruitment partners that they nowonly want to engage with contractors who operatethrough their own limited company.

Where a contractor operates through their ownlimited company and confirms they are in businesson their own account, so long as the end clientdoes not supervise or direct them they can beconsidered as outside the scope of the Regulations.This makes them easier to deal with from both arisk and adminstration perspective.

It is widely accepted that assignments that areeither inside or outside IR35 can still be outside thescope of The Agency Workers Regulations, whereasassignments that are in scope of The AgencyWorkers Regulations must also be caught by IR35.

For clear, accurate and honest advice call:

0845 045 1021

You’re only one call away from an umbrella solution for [email protected]

23

Umbrella Contractors Questions and Answers My recruitment company has confirmed thatthe assignment is on comparable pay; will Ineed to do anything?

If I have a dispute how do I take it forward?

Possibly

Where an assignment is offered as comparable payyou will be able to operate through a TraditionalUmbrella; the type of umbrella that has been aboutfor quite a while and probably the type you arecurrently with.

The reason that the answer is possibly is that manyrecruitment companies are moving to restrictedpreferred provider lists, in order to ease theircompliance burden, if your umbrella is not on theirlist then you maybe asked to change.

It will be worth checking with your recruitmentcompany, at outset, which providers they accept.You will find that the majority of recruitmentcompanies will accept providers that have beenaudited and approved by Professional Passport.

In all cases if you have any issues you should firstraise these with your umbrella provider andrecruitment company. You should make attempts toresolve any dispute before progressing the case toan employment tribunal.

If you are working through a Swedish DerogationUmbrella and the terms you agreed at outset wereclear and transparent you could have difficulty inbringing a successful claim.

If your assignment was on comparable pay andtherefore you are using a Traditional Umbrella, ifyou become aware of something that makes youquestion whether comparable pay is being achievedyou should immediately raise this with yourumbrella provider and recruitment company.

Remember comparable pay can be measured usingpay scales in force within a company and not just toa direct worker.

The obligation to provide comparable pay onlystarts after 12 weeks in the assignment, not fromoutset.

you may find that higher value assignments are...

... restricted to contractors with their own company

24 [email protected]/contractors

Limited Company Contractors Questions and Answers I am being asked to confirm that I considermyself as ‘in business on my own account’why am I being asked that?

Does being outside the scope of The AgencyWorkers Regulations also mean that I amoutside IR35?

If I am inside the scope of The Agency WorkersRegulations what will that mean to my IR35status?

Will my agency confirm my IR35 status as wellas my AWR status?

As a limited company contractor you could beoutside the scope of The Agency WorkersRegulations where you are in business on your ownaccount and not under the supervision anddirection of the end client.

No

All links between The Agency Workers Regulationand IR35 have been [deliberately] removed.

To be out of scope of the AWR as a limitedcompany contractor you must be ‘in business onyour own account’ and not under the supervisionand direction of the end client. It has no relation toIR35.

If you are within the scope of the AWR you will findthat, as a result, you are also likely to be insideIR35. Many of the benefits provided to you as anagency worker in scope of AWR are clear indicatorsof being inside IR35.

If you are within the scope of the AWR you will findthat, as a result, you are also likely to be insideIR35.

Many of the benefits provided to you as an agencyworker in scope of AWR are clear indicators ofbeing inside IR35.

You can be out of the scope of AWR regardless ofwhether your assignment is inside or outside IR35but if you are in scope of the AWR then you arelikely to be caught by IR35.

No

As we have highlighted above there is no linkbetween IR35 and AWR.

As a limited company contractor it is you that islikely to have to confirm your AWR status to theagency, unless the assignment is clearly under thesupervision and direction of the end client in whichcase you wil automatically be in scope for AWR,and as a direct result you are also likely to becaught by IR35

Contractors retain responsibility for assessing theirown IR35 status; nothing changes there.

25

Limited Company Contractors Questions and Answers I am being told that I will be provideddifferent terms of engagement depending onmy AWR status is this correct?

I have worked for an end client for quite awhile and considered myself as outside IR35; Iam now told that the assignment is in scope ofthe AWR what do I do?

Yes

Where a limited company contractor confirms thatthey are in business on their own account and notunder the supervision and direction of the clientthey are likely to be offered contractual terms thatare IR35 neutral.

This will allow you, the contractor, to assess yourtrue IR35 status based on the actual workingrelationship between you and your end client.

Where you do not confirm that you consideryourself to be in business on your own account orthe assignment is under the supervision anddirection of the end client then you will be in scopeof AWR.

The contractual terms offered in these situations arelikely to be more representative of an assignmentthat is caught by IR35 and as we have alreadyhighlighted, if you are in scope AWR you are likelyto be considered as caught by IR35.

As we have already stated there is no directcorrelation between AWR and IR35 except where aworker is in scope AWR and therefore is likely to beconsidered as inside IR35.

From this point forward we would advise you toreview your position and apply the deemedpayment calculation to all future income from thisassignment.

You could attempt to renegotiate terms with yourrecruitment company as a result of the additionaltax you will now suffer.

You can of course always find a differentassignment that is out of scope AWR and outsideIR35.

How you deal with the past will depend on anumber of factors and we would stronglyrecommend that you seek professional advice andguidance on your situation.

26 [email protected]/contractors

in business on your own account and not supervised...

... or directed by the client equals outside AWR

Are you paying more than £22a month for your insurance?

We’ve all made tougher decisions!

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Limited Company Contractors Questions and Answers If I have a dispute in relation to AWR how do Itake it forward?

This will only apply to limited contractors who arein scope of AWR; if you have confirmed that youare in business on your own account and not underthe supervision and direction of the end client youare outside the Regulations and therefore cannothave a dispute with any part of them.

Where the Regulations apply to you, in all cases ifyou have any issues you should first raise these withyour recruitment company. You should makeattempts to resolve any dispute before progressingthe case to an employment tribunal.

where equal treatment within the AWR applies...

... a contractor is likely to fail IR35

28 [email protected]/contractors

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Access to FacilitiesProviding agency workers with the same accessrights to certain facilities as permanent staff.Examples given are staff canteen, transport facilities,car parking and child-care.

Access to VacanciesAgency Workers now have the right to be notifiedof any job vacancy that becomes available at theend client. This is from Day 1.

Agency WorkerThe term used to identify the workers that aresubject to the new legislation. Defined in theguidance as: An agency worker (often referred to as a ‘temp’) issomeone who has a contract with the TWA (anemployment contract or an agreement to provideservices personally) but works temporarily for andunder the direction and supervision of a hirer. Theunique, tripartite relationship between agencyworker, agency and hirer is a key feature of theseRegulations and who is covered by them.The key elements required for someone to be anagency worker are:

• There is a contract (an employmentcontract or an agreement to provideservices personally) between the worker anda TWA;

• That worker is temporarily supplied to ahirer by the TWA; and

• When working on assignment the workeris subject to the supervision and direction ofthat hirer.

AND

• The individual in question is not in abusiness on their own account.

Annual Pay AwardThe term used to identify annual pay incrementsoffered by end clients to their permanent staff.

Where these awards are made an agency workershould receive the same pay increment that theywould have been entitled to if they were recruiteddirectly to do the same job.

Anti AvoidanceMeasures that have been put in place to avoid anyparty circumventing the Regulations.

Audit TrailHaving demonstrable evidence to show that therequired information was requested.

AWD and AWRThe Agency Worker Regulations; previously referredto as AWD before the Regulations came in to effect.AWD is the Agency Workers Directive and refers tothe European Directive that was passed by theEuropean Parliament in late 2008. It was thisDirective that requires the UK to implement theRegulations by no later than December 20 11.

BISThe Department for Business, Innovation and Skills.A Government Department that many people stillrefer to as its very old name The DTI.

Break between AssignmentsThe term used to describe a gap in a contract. Thiscould be to describe a period where a worker is notengaged on any assignment but could still beengaged by an umbrella company, or where aworker has previously worked for an end client andis returning after a break.

BonusesIn relation to AWR; an amount that is directlyattributable to the amount or quality of the workdone by the individual and included when havingto compare pay.

Umbrella Providers can also use the term bonus [orassignment bonus or commission] to describe theelement of a worker’s pay that is paid in addition tobasic salary.

Glossary of Terms

beware - not all companies that call themselves ...

... umbrellas meet HMRC’s definition

29

Collective FacilitiesThe description used to define the facilities that areincluded in the equal treatment from Day 1. Someof the examples given are: canteen, creche and carparking.

Comparable PayEqual pay comparisons can be with a directemployee who is doing broadly the same role or,what is more likely, the use of pay scale rates for arole. The BIS Guidance provides some excellentexamples on the use of pay scales for comparablepay.

Comparable WorkerAn employee or worker engaged directly by the endclient. This worker can be used as a benchmark forequal treatment for an agency worker who is doingbroadly similar work.

ComparatorThe employee or worker engaged directly by theend client who is the basis of comparison for equaltreatment covering both Day 1 Rights and rightsacquired after the 12 week qualifying period.

Day 1 RightsThe rights that must be given to all agency workersfrom the first day of their engagement. Theseinclude: access to information on vacancies,collective facilities or amenities.

Direct EngagementWhere the end client contracts a temporary workerwithout the use of a recruitment company oragency.

Employees NIEmployees National Insurance is a tax paid byemployees on their taxable pay under the Pay asYour Earn rules [PAYE].

Employers NIEmployers National Insurance is a tax paid byemployers on their employees gross taxable payunder the Pay as Your Earn rules [PAYE].

In the case of an offshore umbrella this tax is notcovered under the double taxation agreements thatexist and is often not paid by offshore umbrellas.Where they fail to pay this to HMRC it can leave end

clients exposed to the risk of investigation andchallenge by HMRC and, where successful, allowHMRC to transfer any outstanding liabilities directlyto the end client as the ‘host employer’.

Employment TribunalsThe formal process that will hear, and rule on,disputes where a worker feels the terms of the AWRhave not been met.

Typically claims made by workers must be receivedby the tribunal within 3 months of when the allegedbreach occurred or the end of the contract.

End ClientAlso referred to as the hirer and is the ultimate clientwhere the temporary worker is working.

Equal TreatmentThe term used to describe how an agency workermust be treated in relation to a direct employeedoing broadly the same role.

ESIThe Employment Status Indicator tool developed byHMRC to determine a worker’s employment status.

HirerAlso referred to as the end client and is the ultimateclient where the temporary worker is working.

Holiday PayPayments made to workers when they are onholiday; one of the measures within the equaltreatment.

Where the holiday entitlement is above thestatutory minimum this additional amount can beeither given as paid leave or paid in lieu as part ofthe rate.

In Business On Your Own AccountThe phrase used to define a contractor whooperates through their own limited company and isoutside the scope of the AWR.

The phrase relates to a series of tests, that are notdefined in the Regulations, that should be appliedto establish the worker’s status.

continued >

Glossary of Terms

30 [email protected]/contractors

< continued

Workers who are outside IR35 are likely to beconsidered out of scope, however workers insideIR35 could be either in scope or out of scopedepending on the exact terms of their assignment.

In-House Temporary Staffing BankGenerally considered out of scope where acompany employs its temporary workers directlyand they are only supplied to work directly for thatbusiness [although they are still subject to the FixedTerm Employees (prevention of less favourableterms) Regulations that have been in place since2002.]

In ScopeThe term used to refer to an agency worker who iswithin the Agency Workers Regulations.

Information RequestsThe information that a temporary work agencyshould ask for / receive from the end client for eachvacancy.

The ability for an agency worker to requestinformation in relation to their equal treatmententitlements.

IR35A piece of legislation that applies to all contractorscarrying out assignments through their own limitedcompany.

It is designed to identify and differentiate betweendisguised employees and contractors who are inbusiness on their own account by applying a seriesof prescribed tests to determine their status.

The outcome of the tests determines how theincome from a specific assignment will be taxed.

LiabilityThe potential consequences for failing to meet therequirements of the legislation.

The minimum award, in the majority of cases, is theequivalent of two weeks money with no maximum.

Penalties can also be made of up to £5,000.

Managed Service ContractsWhere a company provides a specific service to aclient; the examples used are catering and cleaning.

Where the contract is for a contract for services andsets out service level agreements these are outsidethe scope of the AWR.

Master VendorWhere one company, usually a recruitmentcompany, is appointed to manage the supply ofworkers to an end client.

These master vendors typically use otherrecruitment companies to provide workers asrequired.

A master vendor falls within the definition of aTemporary Work Agency and therefore is in scope.

Multiple HirersWhere an agency worker is engaged on multipleassignments through a number of recruitmentcompanies.

National Minimum WageThe legal minimum wage a worker can be paid perhour.

At the time of going to press this was:

• £5.93 for workers aged 21 and over• £4.92 for workers aged 18 - 20• £3.64 for workers aged 16 -17 • £2.50 the apprentices rate

The rates change in October and the new ratesapplicable from 1st October 2011 are:

continued >

workers who are outside IR35 are likely ...

...to be considered out of scope for AWR

Glossary of Terms

31

< continued

• £6.08 for workers aged 21 and over• £4.98 for workers aged 18 - 20• £3.68 for workers aged 16 -17 • £2.60 the apprentices rate

Neutral VendorSimilar to a Master Vendor but usually the companyhas no direct recruitment offering of its own.

These neutral vendors typically use otherrecruitment companies to provide workers asrequired.

A neutral vendor falls within the definition of aTemporary Work Agency and therefore is in scope.

New HirerA new hirer for the purposes of the AWR must be adifferent person, or a different legal entity.

Where a hirer has multiple sites, moving the workerto another is unlikely to constitute a new hire.

Where a hirer is part of a larger group, and eachcompany has its own legal identity, then eachcompany will be a new hirer, subject to the antiavoidance rules.

Out of ScopeWhere a worker is outside the rules and theRegulations do not apply.

Overarching EmploymentThe terms and conditions of employment used byumbrella providers that allow workplaces to beassessed as a series of temporary workplaces.

Where a workplace is assessed as temporary thentravel and subsistence expenses can be claimed.

PayPay is one of the measures of equal treatment underthe Regulations and is tested after a 12 weekqualifying period.

Pay Between AssignmentsWhere a worker sacrifices their right to equal paythere is a requirement to pay the worker aprescribed amount when they are in betweenassignments.

The worker must have qualified by completing the12 week qualifying period.

PAYEThe UK tax regime to tax employed workers on theiremployed schedule E income.

Pay as you Earn includes both Tax and NationalInsurance Contributions.

Payment in LieuWhere holiday entitlement is above the statutoryminimum then this additional entitlement can bepaid as part of the hourly or daily rate.

It can also be paid as a one off payment at the endof the assignment.

PenaltiesAn additional amount that an Employment Tribunalcan levy where they feel it is appropriate.

Penalties can be up to a maximum of £5,000.

They are only likely to be applied in extremesituations or where there are clear and deliberatebreaches of the rules.

They can be applied to any of the connected partiesin the chain.

Permanent Contract of EmploymentWhere a worker agrees to sacrifice their right toequal pay under the Regulations they must beoffered full employment, either through thetemporary work agency or an umbrella provider,and they must be paid an agreed amount inbetween assignments after a 12 week qualifyingperiod.

Qualifying ClockThe Regulations have additional obligations thatstart after a qualifying period of 12 weeks; thequalifying clock is the term used to define whetherthe 12 weeks has been reached.

The clock can also be reset under certaincircumstances as well as paused.

Qualifying PeriodA worker has to work for 12 weeks to qualify forcertain additional rights, this is known as thequalifying period.

Glossary of Terms

32 [email protected]/contractors

Reasonable Offer of EmploymentThe agreed terms that an agency worker is willingto accept on any particular assignment. This will beagreed at outset between the umbrella provider andthe worker, when the Swedish Derogation is beingused, and a written record of the agreement needsto be kept.

Reasonable Offer of WorkThe same as a Reasonable offer of employment.

RegulationsThe Agency Workers Regulations 2010.

SecondmentWhere an individual is on loan from oneorganisation to another. These arrangements willtypically be out of scope.

Substantively DifferentThe term used to describe a new assignment withthe same hirer where the job role is significantlydifferent. As it is significantly different it isconsidered as an entirely new assignment andrestarts the qualifying clock.

Swedish DerogationThe term used to describe the umbrella model thatcan be used when a worker sacrifices their right toequal treatment on pay.

Temporary Work AgencyThe term to describe a company that suppliesagency workers to work temporarily for a thirdparty.

Umbrella CompanyA company that employs workers on an overarchingemployment contract and allows them to claimtravel and subsistence expense subject to certainrequirements.

Working TimeIncludes duration of working time; night work; restperiods and breaks and is one of the factors thatmust be equalised after the 12 week qualifyingperiod.

Useful LinksDirectgov websiteAWR LegislationAWR GuidanceHMRC IR35

Glossary of Terms

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33

34 [email protected]/contractors

0207 374 6957

[email protected]

www.cxcglobal.co.uk

0151 449 3500

[email protected]

www.i-paye.com

01895 590001

[email protected]

www.jmkgroupuk.com

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www.360-group.com

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[email protected]

www.springboardumbrella.co.uk

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0845 045 1021

[email protected]

www.atlanticltd.co.uk

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01253 600140

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www.jsagroup.co.uk

0800 197 6516

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www.paystream.co.uk

0845 603 8088

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www.orangegenie.com

0845 604 0571

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0845 643 0600

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www.sprite-services.com

01332 856986

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www.simplifybusiness.co.uk

0844 854 5225

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www.thecpsgroup.co.uk

01895 590001

[email protected]

www.jmkgroupuk.com

0845 20 20 360

[email protected]

www.360-group.com

Audited and Approved Accountancy Service Providers

01253 600140

[email protected]

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0800 25 26 40

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www.jsagroup.co.uk

0800 197 6516

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0151 480 9672

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0844 854 5225

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01635 573551

info @professionalpassport.com

formations.professionalpassport.com

01635 573551

[email protected]

jobs.professionalpassport.com

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35