ESM2062 - Agency and temporary workers: agency legislation - provisions from 6 April 2014: supervision, direction or control example - security officer

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

Security Officer

Rob is an experienced Security Officer who holds a regulatory Frontline SIA Licence and has largely provided his services at construction sites and corporate events. Rob uses an employment business to get him work, as this provides him with regular and varied work with numerous end clients.

A construction company is building a new housing development of fifty houses. Work has started on the site, a perimeter fence has been installed, and building materials are starting to be delivered. The security company engaged to provide on site security contact the employment business and ask them to supply an experienced Frontline SIA licensed Security Officer who is prepared to work alternative night and day shifts alongside four existing security personnel on site for the next twenty weeks. The employment business contact Rob who is offered the engagement, which he accepts after the CRB checks are complete.

Rob attends the construction site on his first day and meets with the Head of Security, who gives Rob his security pass, a hard hat, and a high visibility jacket displaying the security company’s name. Rob is provided with a shift rota containing the day/night shifts he will be working. He is told he must sign in and out every time he enters or leaves the site and follow the required health and safety procedures. Rob is told he will mainly operate from the security cabin at the site entrance, where he must politely greet all authorised persons entering and leaving the site, ensuring all security procedures are correctly carried out as required; including vehicle and personnel searches with the appropriate paperwork being completed. Rob must also do frequent daytime patrols and inspections on site at his discretion, provided the timings vary each day and the main site entrance remains staffed by Security Staff at all times. Rob is also told he may be instructed by the head of security to do additional ‘ad hoc’ duties, or change the way he does his standard duties, should the needs arise. During the evening shifts, Alan must regularly patrol the site to make sure the site entrance and perimeter fence remain intact and nothing has been disturbed. Alan must also monitor the CCTV cameras from the security cabin, report all security breaches immediately and follow the client’s standard procedures they have in place.

Rob provided his services to the end client for the full twenty weeks, working alongside other security officers. There were no security breaches to report throughout the twenty weeks. Being an experienced security officer Rob did not need anyone to oversee how he did his work. Nor did he need anyone to tell him each day what duties must be done, how they must be done or what order to do them.

It may appear that Rob was not subjected to any supervision, direction, or control as to the manner in which he provided his services- however that is not in fact the case. Whilst Rob was not supervised by anyone during his engagement and being an experienced Security Officer, he did not require anyone to give him directions as to how he did his job (as this was dictated by the nature of the job). Rob did not have any freedom to choose how he did his duties. He could not choose how to do the security checks, how to record site arrivals/departures, and how he would report any security breaches. Rob had to follow the client’s procedures in place which dictated how this work was to be done and was therefore subjected to control by the end client when doing this work. That is sufficient to make the agency legislation apply to Rob’s arrangement, provided the other conditions of the legislation are also met.

Rob himself had to follow procedures governing signing in/out when arriving/departing the site and also follow health and safety procedures (which could have played a part in dictating how he did his work). The relevance of such procedures in considering the question of supervision, direction or control over the manner in which the services are provided is not diminished simply because the procedures are imposed due to the regulatory environment in which the services are provided – see ESM2037. Equally, the fact that the procedures apply to all persons providing services (whether employed or self-employed) does not mean that those procedures 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.

The agency legislation applies to Rob’s arrangement, provided the other conditions of the legislation are also met.