ESM2058 - Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - professional chef

Part 2, Chapter 7 Income Tax (Earnings and Pensions) Act 2003, Part 2, Chapter 7, section 44(2)(a)

Social Security (Categorisation of Earners) Regulations 1978, Schedule 1, Part 1, paragraph 2

Professional chef

Imran is a qualified chef who has a number of years’ experience working in various restaurants. He obtains his work via an employment business which finds him jobs with clients. A High Street restaurant asks the employment business to supply them with an experienced chef to provide cover for one month.The employment business contacts Imran about the position and after meeting with the proprietor Imran accepts the role.

Imran attends the restaurant on his first day and meets Barry (the Proprietor/Head Chef), who presents Imran with a copy of the restaurant’s current menu, containing specialist dishes which Barry has created. Barry tells Imran he must be able to prepare and cook those dishes in the same way and to the same standard as the restaurant’s other chefs and throughout his engagement he must comply with the mandatory health and safety and food hygiene standards whilst working in the kitchen.

Imran’s first task is to watch Barry demonstrate how he makes his specialist dishes, copying Barry as he goes along to ensure he learns how to prepare the dishes as required. Throughout Imran’s engagement, Barry dictates how Imran will undertake his various duties. This includes telling Imran what dishes he must prepare, the way they must be prepared, and what specific ingredients he must use. Over the next month, Barry watches over Imran and the other chefs during their work to ensure they are preparing and cooking the dishes correctly and on time, stepping in to provide guidance and assistance where necessary. Barry also provides Imran with other jobs to do in addition to preparing meals. This includes helping with the checking and ordering of new stock from the suppliers and unloading, recording, and storing those supplies upon delivery. Imran completes his work for this client at the end of the month.

In this scenario, Imran has been subject to supervision, direction, and control as to the manner in which he provides his services. Barry has told Imran what specific work he must do and how that work must be done, directing Imran in this work throughout as he moved Imran from task to task. Barry also supervised operations in the kitchen to make sure Imran and the other chefs were doing their work in the way Barry required (i.e. preparing dishes in a specific way). Imran had no control over the manner in which he provided his services, as this was all dictated by Barry.

The agency legislation applies to this scenario, provided the other conditions of the legislation are also met.

In this example Imran was required to comply with health, safety and food hygiene standards. The relevance of these in considering the question of supervision, direction or control over the manner in which the services are provided is not diminished simply because they are imposed due to the regulatory environment in which the services are provided – see ESM2037. Equally, the fact that they apply to all persons providing services (whether employed or self-employed) does not mean that they are not relevant for the purposes of supervision, direction or control over the manner in which the services are provided (or the right thereof) – see ESM2037.