NIM33750 - Secondary contributor: special rules: the agency worker: on or after 6 April 2014
Regulations 1(2), 2(2) and 5 of the Social Security (Categorisation of Earners) 1978 (SI 1978 No 1689)
Paragraph 2 of Part 1 of Schedule 1 to the Social Security (Categorisation of Earners) 1978
Paragraphs 2 & 9 of Schedule 3 to the Social Security (Categorisation of Earners) 1978
Where a person is supplied by a foreign employer, or by or through an agency, there are special rules that determine who is the secondary contributor. The regulations treat someone in the United Kingdom (UK) as the secondary contributor. The table below summarises the rules.
ESM2040 provides guidance where a worker provides their services to a client under (or in consequence of) a contract between the client and a third party - including through a foreign agency or employer. This will only apply where the worker is not already an employee of another employer.
The table below summaries the rules:
| Employment situation | Secondary contributor |
|---|---|
| By a foreign employer where the employed person, under an arrangement involving the foreign employer and the host employer, provides, or is personally involved in the provision of services to a host employer | The host employer |
| Under or in consequence of a contract between a foreign agency and an end client where the worker provides services to that end client | The end client |
| 1) By a foreign employer where the worker provides services to an end client under or in consequence of a contract between the end client and a UK agency | The UK agency who has the contractual relationship with the end client |
| 2) Where 1 applies above and the end client provides fraudulent documents at any time to the UK agency in connection with the control, direction or supervision which is to be exercised over the employed person | The end client |
| 1) By a foreign agency where the worker provides services to an end client under or in consequence of a contract between the end client and a UK agency | The UK agency who has the contractual relationship with the end client |
| 2) Where 1 applies above and the end client provides fraudulent documents at any time to the UK agency in connection with the control, direction or supervision which is to be exercised over the employed person | The end client |
| By a UK employer where the worker provides services to a person outside the UK under or in consequence of a contract between that person and a UK agency and the worker is eligible to pay contributions in the UK in relation to that employment | The UK employer or UK agency who has the contractual relationship with the person outside the UK |
| By a foreign employer where the worker provides services to a person outside the UK under or in consequence of a contract between that person and a UK agency and the worker is eligible to pay contributions in the UK in relation to that employment | The UK agency who has the contractual relationship with the person outside the UK |
| By a foreign employer or foreign agency and a person who is resident in Great Britain (who is not the end client) with a contractual relationship with the UK agency provides fraudulent documents at any time to the UK agency in connection with the purported deduction or payment of contributions in connection with the employed person | The person who provides the fraudulent documents |
‘UK agency’ means a person, (including a body of persons unincorporate of which the employed person is a member) who has a place of business, residence or presence in Great Britain.
A UK employer is not the contractual employer but someone in the UK (the end client) to whom the worker provides services, see NIM33730.
The effect of these regulations is to ensure that the secondary contributor for an agency worker is the UK agency that makes the arrangements with the UK employer. If there is no UK agency involved in the contractual chain, then the secondary contributor is the UK employer.
These rules apply where a foreign employer is not treated as being a secondary contributor and liable under European Union regulations, see NIM33120 or under the UK / Isle of Man Reciprocal Agreement, see NIM33012.