ESM11070 - Check Employment Status For Tax: Control - How the worker carries out the work

CEST asks ‘Does your organisation have the right to decide how the work is done?’ or ‘Does your client have the right to decide how the work is done?’

ESM0526 gives more detail about the right to control how work is done and its effect on employment status. Examples can be found at ESM0527 to show how HMRC interpret the right to control ‘how’ a worker carries out their duties / task.

Where a hirer does not give instructions all the time, it may be unclear whether they have the right to decide how the work is done. This may be because there is only one way to do the work or because the worker is trusted and skilled. In these cases you should consider whether a framework for control exists. For example, does the worker report to somebody who reviews their performance. The important question is whether the hirer could ultimately decide how the work is done if they wanted to.

Where the hirer has the right to tell a worker the way in which the work is done, and the worker must follow those instructions, this would fall within the ‘yes’ category for CEST.

Where a regulatory body exercises control over how tasks are performed this will not be relevant to this question, unless the hirer is the regulatory body. The requirements of the regulatory body would apply equally to the employed and self-employed. However, where the hirer is responsible for ensuring that the worker meets regulatory standards it is highly likely that they will have the right to decide how the work is done. This would fall within the ‘yes’ category for CEST.

Where a worker has sole discretion over the way in which the work is done even though the hirer has the expertise to give instructions, this would fall within the ‘No, the worker solely decides’ category for CEST.

If neither the worker nor the hirer has the final say but need to mutually agree on the way in which the work is done, this would fall within the ‘No, your organisation and the worker agree together’ category for CEST.

Some workers are engaged for their specialist skill and judgement. The hirer may not even fully understand what they do. Where the nature of the profession, or the work, is such that it is not appropriate for the hirer to direct the way in which to the work is done, this would fall within the ‘Not relevant, it is highly skilled work’ category in CEST. However, you should first consider whether a framework for control exists.

EXAMPLES

• Sally is a customer service assistant for an insurance company. Sally follows scripts and has certain things she must do on each call. For CEST purposes the hirer controls ‘how’ Sally’s work is done.
• Norman is a builder hired to convert garages for a building company. The building company give Norman the plans, but it is up to Norman to decide how to do the garage conversions. For CEST purposes Norman controls how he carries out the work.
• Fahmida is a sales manager hired for her experience. She and the hirer can both suggest the way sales are made but they must come to an agreement. For CEST purposes the organisation and worker agree together.
• Bhassat is a senior structural engineer. His work is specialist and required extensive training. The hirer provides Bhassat with job specifications but relies on Bhassat’s skill and judgement to get the work done. This would be the case whether Bhassat was employed or self-employed. For CEST purposes controlling ’how’ is not relevant as it is highly skilled work.