ESM2031 - Agency and temporary workers: agency legislation - provisions from 6 April 2014: the legislation

Part 2, Chapter 7 Income Tax (Earnings and Pensions) Act 2003, sections 44 - 47, as amended

Social Security (Categorisation of Earners) Regulations 1978 (SI1978/1689) as amended by the Social Security (Categorisation of Earners) (Contributions) Amendment Regulations 2014, Regulations 1, 2 (2) and 5, and Schedule 1, Part 1, paragraph 2 and Schedule 3, paragraphs 2 and 9

From 6 April 2014, the income tax and NICs legislation which applies to agency workers provided to clients through a third party (“agency”) has changed. The relevant legislation (shown above) is commonly known as the “agency legislation” and is contained within the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA 2003”) and the Social Security (Categorisation of Earners) Regulations 1978 (“the Categorisation Regulations”).

Subject to certain conditions, from 6 April 2014 the agency legislation will apply when:

  • an individual (“the worker”) personally provides services (which are not excluded services, see ESM2032) to another person (“the client”), and
  • there is a contract between the client (or a person connected with the client) and a person who is not the worker, the client, or a person connected to the client (“the agency”), and
  • under, or in consequence of, that contract - (i) the services are provided, or (ii) the client, or any person connected with the client, pays or otherwise provides consideration for the services.

When all of these conditions are satisfied, the following provisions will apply to the worker’s income tax and NICs liabilities:

  • For income tax purposes, the worker is treated as holding an employment with the agency, the duties of which consist of the services the worker provides to the client. In this context, the agency is the third party which contracts with the client, or a person connected to the client. In consequence, the remuneration received by the worker for providing the services is treated as earnings from the employment with that agency and is chargeable to income tax as employment income. The employment income rules apply and PAYE must be operated.
  • For NICs purposes, the worker is treated as an employed earner for Class 1 NICs purposes. The remuneration is employed earners’ earnings, and the secondary Class 1 National Insurance contributor is determined in accordance with Regulation 5 and Schedule 3, paragraphs 2 and 9 of the Social Security (Categorisation of Earners) Regulations 1978.

In Northern Ireland, the equivalent NICs provisions are in the Social Security (Categorisation of Earners) (Northern Ireland) Regulations 1978 as amended. For simplicity, reference is made only to the Great Britain (GB) legislation in the rest of this guidance.