Agency work and employment status.

So I applied for vacancies with a number of agencies. None came to anything (I think some could have been fake jobs). Now one agency has contacted me about some work, so I was delighted and indicated I want to pursue it.

Next the compliance bit, including signing the agency terms and conditions. What I read left me feeling a bit alarmed.

the agency wrote:You acknowledge that this agreement between you and us is for work finding services only and you are not our employee nor are you engaged by us for any purpose. Should we locate temporary work for you, the terms that shall apply will be our default terms (which I could not see set out in the agreement ), or the terms of our standard agreement with personal service companies (“PSC”) where you wish to operate through a personal service company (PSC), or our standard agreement with umbrellas should you wish to operate through an umbrella company (also not seen set out in the agreement   ) and in this case you shall agree the terms in the Terms of Agreement set out in Schedule 1.



From schedule 1 of the same document

You shall:
be subject to the direction, supervision and control of the Client or End User to the extent necessary for the proper provision of the Specified Services and comply with such rules and regulations of the Client or End User as are relevant to external contractors

So where it looks muddy is this:

If I am not an employee of the agency 'for any purpose' then I have to presume that 'any purpose' includes working for a client as an agency worker.

It looks like the agency wants me to declare myself as self employed (according to the agreement) presumably to rid them of their liability for employer NI contributions.

https://www.gov.uk/guidance/employment-status-employment-intermediaries

'Schedule 1' (of the agency agreement) contradicts the HMRC criteria of self employed.

gov.uk wrote:
Exceptions to agency rules

Agency rules don’t apply if the worker:

*provides their service without anyone (including the intermediary or the client) having the right to supervise, direct, or control how they do the work - see ESM2037 guidance in Employment intermediaries: personal services and supervision, direction or control
*always works from their own home, or on premises not controlled or managed by the client - unless the type of service being provided to the client means the worker has to be at those premises

I have raised this contradiction with the agency staff and my query was totally ignored. I have not signed the agreement. The agency staff have just continued as if I have not raised any query and just pursued compliance issues including mandatory training that I must complete at my my own expense, DBS, etc.

I am not entering into any DBS or mandatory training until this is all clarified. It looks very much like I might have to walk away from this as it looks like trouble (the very reason that I keep my 'real' activity and my 'job-search' activity separate for DWP purposes, in case I have to turn down work due to dodgy employment practices like this one).

Any thoughts will be appreciated.

Have a paper trail. Send them an email asking to clarify your legal status. Cover your ass.

In think they are operating an introductory business where agency rules do not apply.

https://www.gov.uk/hmrc-internal-manuals/employment-status-manual/esm2012

If you are genuinely self employed and not a worker, the business cannot tell you how to do your job amongst other things.

Thanks M and ND

Now had a look at the link and none of the criteria in the link apply to the role. I have now written to the CEO of the agency asking for clarity of their terms.

Watch this space.

Sadly, I do not think this will result in any job for me.

Just been contacted by a different agency about a different job. Again, trying to bamboozle me into fake self employment.

Both of the agencies involve getting a time sheet signed off by the client and submitting to the agency for payment each week.

They keep using the phrase 'outside IR35'

This is Inland Revenue regulation. Those inside IR35 are bona fide S/E.

I suspect that agencies are using the phrase 'outside IR35' in order to confuse and mislead candidates into false self employment, which can be more expensive for the worker and cause UC problems. Not even going there.

I think what they're trying to do is to have you to work for an umbrella company, then. If this is the case, you're technically an employee of the umbrella company, but in practice you are self employed. I wouldn't discard this option, if I were you, if the underlying job is good.

Bottom line: get the agency for you to have an interview with the client. Then decide what to do. If they don't want to get you to their client, just stay away.

@Miguel
Yes, they are definitely trying to get me to go through an umbrella company, but it is a part time job with no guarantee of work from one week to the next (a bit like zero hour) and definitely no holiday pay so no pay at all when the business is closed. On top of this, I would have to pay the umbrella company fee every week.

I have decided to give it a swerve.

Update: I found out who the agency's client is (small rural business, few of this type in the area). I approached them directly and the proprietor was very forthcoming with details. They do need a S/E worker and s/he suggested an interview after s/he return from hols. I agreed and wait for a suggested date.

Not going through the agency will save the business any agency fees. I could suggest that by paying me a little bit more (per hour) s/he is still saving.

Pros:
I would gain experience.
I would get more than UC (annually).
I would get away from the JC.
It is a straight forward business arrangement with no agency in the chain.

Watch this space.

Be careful. If you've already been contacted by the agency and then bypass them, you and the client might break the contract (even if you signed nothing yet) and they might sue you if they want to.

It would be the Agency's client that is sued. The client will have an express contract with the agency which includes financial consideration.

Thanks M and ND

These had crossed my mind. The business owner will have been supplied with my CV (sans name/contact details) by the agency. The agency is in London whilst myself and the business are in a small rural community (that is why the business was easy for me to find). When I emailed the business owner s/he will have had no idea where I saw the vacancy (did not ask me) or that I had applied via the agency first. I sent the same CV as I supplied to the agency, so s/he may or may not have recognised it.

I am not registered with the agency. The usual process is to apply for an advertised job and then supply ID docs etc. I tend to refuse to do that until they present a real vacancy with real prospects of a job. If they don't, I refuse to register, on the basis that there is not a genuine prospect of employment (i.e. they advertised a fake job and I called them out).

I shall proceed with caution and see what is said.

Just an update and conclusion:



I was not offered any work but it looked nice and I was looking forward to it, so I am disappointed. Back to the drawing board.

The take home message is that agencies sometimes copy vacancies from elsewhere in order to create business when they have not been commissioned, by employers, to recruit anyone.