ESM2003 - Agency workers: who is covered by the legislation

If the agency worker is not engaged under a contract of service the next step in deciding whether the legislation applies is to understand exactly who is contracting with whom to do what. For example, a company requiring some typing work, which is beyond the capacity of its regular staff, could

• engage some extra typists to do the work. No agency is involved. The contract between the company and the additional typists may be a contract of service, or a contract for services (self-employment), depending on its terms.
• engage an independent contractor to do the work. The contractor undertakes to do the typing work using its own staff, who may be either employed or self-employed depending on their terms and conditions of engagement. In this case the agency legislation does not apply because the contractor is providing a typing service. They are not providing typists. The position is the same as, for example, a plumbing firm that undertakes some plumbing work for a client. The plumber who actually does the work is working for the plumbing firm, not rendering personal services to the client.
• ask an agency to provide some extra typists. This is the situation where the agency legislation may apply. The agency does not undertake to do the typing work itself. What it does is to provide typists who do the required work under the direction and control of the client company. However, the typist's contract will usually be with the agency, not with the client. If the typist's contract is with the client, the agency will merely have acted as an introductory agency (see ESM2006). The legislation will not apply and the position will be as in the first bullet above.

Once it is established that an agency-type contract exists it is then necessary to decide whether the legislation applies to the engagement. A number of conditions must be fulfilled and the following table shows the main ones and where to find the relevant guidance.