ESM2011 - Agency workers: professional workers

The fact that a worker may be exercising a profession, chargeable under Case II of Schedule D with liability for Class 2/4 NICs, in respect of certain engagements the worker undertakes, is not in itself sufficient to take that individual outside the scope of the agency legislation in respect of others. Most members of a profession - for example, engineers and draughtsmen - who render services in circumstances which, but for the special contractual arrangements involving agencies, would have made them employees, will be subject to, or to the right of, supervision, direction or control over the manner in which they render their services.

The fact that workers are professionally qualified, skilled or experienced may mean they are not, in practice, subject to detailed supervision, direction or control etc. But there will usually still be a right of supervision, direction or control etc which can be exercised on the rare occasion when the need arises.

A professional worker, who accepts an agency engagement but is not subject to, or to the right of, supervision, direction or control over the manner in which the services are rendered, will not be within the agency legislation.

Very occasionally the administrative practice for tax purposes described in SE03002/EIM03002 will be appropriate for professional workers who undertake agency work merely as an incident in the carrying on of a private practice. The practice will not however apply if a significant part of the work of a professional person consists of engagements to which the agency legislation applies.

There is no equivalent administrative practice for NICs purposes. So the agency and the worker will be liable for Class 1 NICs even though tax will not be collected via PAYE.