EIM32125 - Travel expenses: travel for necessary attendance: fixed term appointments and agency workers: fixed term appointments

Section 339(5) ITEPA 2003

A period of attendance at a workplace for a limited duration does not make that place a temporary workplace if the employee attends in the course of a period of continuous work (see EIM32080) that can be expected to last for all, or almost all, of the period for which he or she is likely to hold, or continue to hold, that employment. In these cases the 24 month rule (see EIM32080) is overridden and the workplace is a permanent workplace.

The legislation does not define almost all of the period of the employment. You should not normally challenge relief under this paragraph where the likely duration of work at a workplace is less than 80% of the likely duration of the employment.

The place where an employee works does not of itself determine who is his or her employer. Nevertheless, when someone is sent to work at a particular workplace for, say, 18 months, it is always necessary to consider whether the secondment is part of the duties of a continuing employment or whether it involves taking up a different employment.

In most cases the position will be straightforward. The secondment may be in the course of a long term employment during which the employee can expect to move from office to office for different periods in the course of the employment. Conversely, in some industries there is a pattern of casual employment, where an employee may be taken on to work at a single site for a short period. However, there are cases where the position is less clear-cut.

A secondment may amount to acceptance of a new employment but this can only be determined on a case by case basis taking into account all relevant factors. Factors in favour of the secondment being a new employment would include a separate contract with a different employer, a termination of the previous employment and a major change in employment duties from those of the previous employment.

Factors pointing to a continuing employment before and after the secondment would include continuing rights under the contract of employment, such as pension or seniority rights or, in some cases, share scheme participation, and the same employer. (This text has been withheld because of exemptions in the Freedom of Information Act 2000)

The application of this rule is illustrated by a series of examples beginning at example EIM32126.

The position of employees on secondment is considered at example EIM32129.

The rule has a particular impact on agency workers, see EIM32130.

The position of site-based workers, particularly those in the construction industry, is considered at EIM32132.

This rule is modified where the employee works at a succession of workplaces but the change of workplace has no substantial effect on the employee's journey to work. All such workplaces are treated as the same workplace for the purpose of the legislation, see EIM32280. This rule should not be used to deny a deduction for travel to a workplace that would otherwise be a temporary workplace, where it is the final posting for someone whose contract of employment has lasted for at least 5 years, see EIM32133.

For case law on the fixed term appointment rule see EIM32137.

When considering whether a workplace is a temporary workplace, you should also consider the other tests listed at EIM32075