In response to your legal analysis ‘Clarify arrangements before you employ agency workers’ (Personnel Today, 23 August) and the letter from Frances Lewis at Tarlo Lyons entitled ‘Reducing risk is not a simple procedure’ (Personnel Today, 6 September) I agree with the first article’s forward planning, because it suggests positive actions. However, I also agree that simply setting up contracts for services and arranging breaks will not achieve the desired result on its own.
The reality is that if hirers do nothing because they are worried about potential tax consequences, then the current situation [where the employment status of agency workers is unclear] will simply continue.
Assuming the contract reflects the nature of the non-employment relationship, I cannot see how this could result in the tax authorities taking a conspiracy theory stance, as alluded to by Lewis – particularly if the tax authorities have already recovered PAYE and national insurance from the agency. But if payments have been made gross by a hirer direct to a temp who is not operating through a limited company, then there may well be an issue.
To manage this issue, temporary workers’ contracts must be consistent, transparent, and reflect the true working conditions. Crucially, HR and procurement managers, as well as staff working with temps, have to treat them differently to employees. The psychology of treating someone differently serves to deter claims as well as to help defeat them.
Adrian Marlowe
Managing director and head of recruitment and employment law, Lawspeed
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