Can a limited company contractor be in scope of the Agency Workers Regulations?

In specific circumstances, limited company contractors working through a recruitment agency may be in scope of the Agency Workers Regulations (AWR). 

This means they have the right to ‘equal’ basic terms and conditions with any ‘comparable’ permanent employees at the end-clients company (where they actually work).

In this article, we’ll look at limited company contractors offering their services to an end-client through a contract with a recruitment agency in more detail. This article doesn’t cover contractors providing services through an umbrella company.

Our downloadable Agency Workers Regulations Guide goes over what the law says, helps you figure out if it applies to you, and gives advice on what you can do to enforce your rights.

What the guidance tells us

Up until now, the question of whether a limited company contractor can fall within the scope of the AWR hasn’t been well tested at Employment Tribunal. 

The only AWR cases to reach Tribunal that’ve been reported so far are related to the Swedish Derogation model (limiting equal pay), redundancy consultation and other pay issues that we covered in another article.

The government’s original guidance on the AWR said that the definition of an ‘agency worker’ excludes: 

• Individuals who are in a ‘profession or business undertaking carried out by the individual’, where the hirer is a client or customer of the individual
• Arrangements where the user has the status of a client or customer of the limited company or self-employed contractor.

In other words, where a genuine business relationship exists, and the contractor isn’t under the direct supervision and control of the end-client, individuals are excluded from the AWR.

Limited company contractors who are truly in business on their own account should be out of scope, although contractors aren’t automatically excluded just by virtue of working through a limited company.

It’s generally felt that personal service company contractors are likely to think twice about jeopardising their tax status by asserting agency worker rights.

Example

The Department for Business, Innovation and Skills guidance gives the example of an IT contractor who supplies his services through a limited company:

“An individual has set up his own limited company through which he provides IT services. He has a contract with a TWA (Temporary Work Agency) and is supplied to work on a specific project with an anticipated duration of 12 months.” 

“The individual has no fixed working pattern and can determine how and when he performs the services; he can also send a substitute to perform the services at any time, or payment is made on a specific, deliverable date, or on a fixed price and not simply on an hour, daily or weekly rate. However, he is subject to the hirer’s reasonable and lawful instructions.”

“Given the absence of personal service and mutuality of obligation, the company is a client or customer of the individual. Therefore, the individual is out of scope. This must be a true reflection of the reality of the relationships between the parties involved and not simply a reflection of the contractual terms.”

What are Agency worker regulations?

The Agency Workers Regulations (AWR) were introduced in 2011 to ensure that agency workers are given some of the same employment rights as their full-time counterparts who do the same work for the same employer.

The AWR applies to all ‘agency workers’. Broadly, it gives them the right to the same basic working and employment conditions they would’ve received if they had been employed directly by the end client in the same job. The extent of these rights must be the same as a ‘comparable’ permanent employee of the client.

A ‘comparable’ worker is a directly-employed, permanent member of staff who does similar (although not necessarily the same) type of work, and generally at the same location. Importantly, if there’s no comparable worker, there’s no entitlement to equal treatment.

The regulations apply to all agency workers, regardless of pay or position. In brief, the AWR states that:

• If you’re an ‘agency worker’ you have a right after 12 weeks service with a client to equal pay, equal working hours, rest breaks, holiday provisions, and the right to paid time off for antenatal appointments, that a ‘comparable’ permanent employee of your client receives.
• These 12 weeks don’t have to be continuous.

As long as both you and the client fall within the scope of the AWR, you’ll have the right to many enhanced entitlements your client gives to its permanent staff, as well as the legal minimum rights to holidays, rest breaks, etc. that you should already be receiving.

Here, we focus on issues relating to pay that are the most important to professional contractors. For extra information about the AWR ‘Day 1 Equal Treatment’ provisions see.

The AWR does not change the employment status of agency workers - they’ll continue to be employed by the agency rather than the hirer (on a worker or an employee contract).

Recruitment Agency clauses

Since the AWR were introduced in October 2011, recruitment agencies have been inserting clauses into contractual agreements that are related to the AWR and strengthen a contractor’s case for being seen as in business on their own account. 

Such clauses include (not verbatim):

• “The contractor warrants that it operates on a business-to-business basis”
• “The contractor is operating a business undertaking”
• “Services are performed by an independent consultant”
• “The contractor is not directed or supervised by the client”
• “The services are provided to [the agency] and the client as customers of the contractor’s business”
• “The contractor shall indemnify [the agency] against any losses arising… from any claim that the contractor is entitled to rights according to the AWR”

These clauses are designed also to give the agency and client comfort that the contractor isn’t subject to the AWR. However, if a contractor believes they are, they’d need to dispute their employment ‘status’ at an Employment Tribunal.

The Employment Tribunal will consider if the description of the arrangement in the contract reflects the reality of the relationship.

The focus will fall on the relationship which exists between the limited company, the end user client and/or the agency. 

The Tribunal will also have to weigh up whether they’re in business on their own account or not (and have a business-to-business with the end-client). There’ll no doubt be a debate about what exactly a ‘business undertaking’ is and what a ‘business-to-business’ relationship actually means.

The courts have devised a number of tests which examine the individual’s circumstances and consider all aspects of the ‘employment’ relationship, including their conduct, what a contract does and doesn’t say, and the expectations of the parties involved, to establish the reality of the relationship.

The difference between ‘contractor’ and ‘temp’

A temp will be paid by the agency. The work they do is under the client’s control, like any permanent employee. For example, they’re supervised, told what time to start and finish work, and told what to do while they’re there. Temping is often done in the short-term and/or for a transitional period while they look for another permanent job.

In most cases, temps are eligible for ‘equal treatment’ under the AWR.

A contractor, however, is normally responsible for their own business dealings and has control of how and when they do their work. They may be either employed through an umbrella company (explained below), have their own limited company, or be a sole trader.

Contractors may also:

• Work through an agency

• Have a series of assignments from several clients at the same time

• Hire a ‘substitute’ to do the work for them.

Contractors are generally higher-paid professionals who are contracting for the long-term. Whether or not a contractor falls within the scope of the AWR is more complicated and will be discussed next.

Defining who is ‘in scope’ of the AWR

In scope (entitled to equal treatment):

• All ‘agency workers’ supplied through a temporary work agency (TWA), including recruitment/staffing/temp agencies, as long as the worker has a contract or agreement with the TWA and will do temporary work for an end ‘hirer’ (i.e. the company they go to work at) and work under the hirer’s direction or supervision.
• Workers (including contractors) who supply their services through an umbrella company (called an ‘intermediary’) and find work through a TWA. Normally these workers will have an employment contract with the umbrella company.
• A contractor who supplies contractors (aka sub-contractors) may possibly be ‘in scope’, as they’re acting as a TWA - the subcontractors they supply could qualify for equal treatment (more details below).

Out-of-scope (not entitled to equal treatment):

• Agency workers working on an ‘indefinite’ basis, not a temporary basis, at the end-hirer - you can read more details in our Knowledge article on AWR and indefinite assignments.
• Any agency worker/contractor that is already treated equally or better than a comparable employee in relation to these benefits.
• Contractors who are in business in their own right, usually operating through their own limited company and where the contract or assignment falls outside of IR35 legislation. Note, however, that limited company contractors (LCCs) - also called Personal Service Companies (PSC) - who work under the “supervision and direction” of the hirer may be ‘in scope’. More details follow later in this guide.
• Genuinely self-employed sole traders who are in business on their own and outside of IR35. Read our full IR35 guide.
• Contractors that operate through an umbrella company that uses the Full (permanent) Employment/Swedish Derogation Model (see page 13) are out of scope for equal pay treatment. However, they remain entitled to equal treatment for rest breaks, holidays etc.
• Workers who work for an in-house, temporary staffing ‘bank’ where they’re employed by the hirer directly.
• Workers who find direct, permanent employment with an employer through a recruitment agency.
• Workers who work directly for managed service companies (MSCs) e.g. cleaners or catering staff. MSCs provide a service to the customer but the MSC, not the customer, has responsibility for managing and delivering the service and supervising their workers at the customer’s premises.

Your options - to be ‘in scope’ or out-of-scope’ of the AWR

You have plenty of options available to you when it comes to being inside or outside of AWR.

These are to work:

• Via an agency/umbrella company which offers no AWR ‘solutions’. This leaves you fully ‘in scope’ of the AWR, and entitled to all enhanced benefits of comparable permanent employees, unless you already receive them.
• Via an agency/umbrella company that offers full, permanent employment for contractors via the Swedish Derogation Model (explained below), entitling you to receive equal treatment for hours, rest breaks, holiday entitlements, and time off for antenatal appointments. However, you will not receive the right to equal pay treatment.
• Via an agency/umbrella company that offers a contract that ‘matches’ permanent pay and gives full employment rights. Although this may affect the expenses you can claim, you still have equal treatment rights for hours etc., but not equal pay rights. ƃ Via your own limited company (or personal service company), which will leave you totally ‘out-of-scope’ of the AWR.
• As a self-employed sole trader, which will also leave you totally out-of-scope of AWR.

An agency or umbrella company may ask you to sign a statement saying that you ‘opt in’ or ‘opt out’ of the AWR. If you’re asked to opt out, you have no legal obligation to do this. However, if you choose to opt in, your rate of pay may be lower because of the admin costs incurred to administer the AWR for the agency and the hirer.

What is an umbrella company?

Many contractors choose to use the services of an existing umbrella company such as Crunch. These are limited companies that employ contractors. If you choose this option, your contracts will be treated for tax purposes as if they’re all inside IR35.

Umbrella companies:

• Deal with the payroll aspect of your employment and all your accountancy, tax and National Insurance Contributions (NIC) issues
• Employ you on a PAYE basis on an ‘overarching’ contract. Rather than being paid directly by your clients, your payment will be processed by the umbrella company. You submit a timesheet (including expenses details) to the umbrella company, who bills the client.

You have an employment contract with the umbrella and the umbrella holds the assignment contract with the agency or the client. Certain expenses (travel and subsistence) can be claimed that could reduce your tax bill.

Usually, umbrella companies provide Employers Liability Insurance, Professional Indemnity Insurance and Public Liability Insurance as part of their fee. They may also offer contributory pension schemes, medical cover and other benefits. While employed by an umbrella company you should also receive statutory minimum workers entitlements such as holiday pay, national minimum wage, rest breaks, maternity pay, access to a contributory auto-enrolment pension etc.

Disadvantages

• The tax burden for contractors who use umbrella companies is far higher than for those who work through their own limited company, leading to lower take home pay.
• All salary drawn through an umbrella company is subject to both employer’s and employee’s National Insurance Contributions.
• HMRC has a 24-month rule that says if you’ve been based (or will be based) at a specific site for 40% or more of your time, for more than 24 months, it’s no longer regarded as a temporary place of work, and you’re therefore no longer entitled to claim business expenses.

Advantages

It’s simpler than running a limited company - the umbrella company should make sure you’re paid regularly and on time and provide all your payslips and other payroll documents.

• Tax and NICs will be deducted at source, so you’ll generally not be required to complete an annual Self Assessment.
• You may not be able to form a limited company if you have visa restrictions, so an umbrella company could be your best option.
• You won’t have to worry about any possible HMRC investigations for IR35.

If you’re between permanent jobs and looking for a short-term solution, or if you’re new to contracting and worried about operating legally, umbrellas can be the simplest and safest option.

The Swedish Derogation Model

When the Agency Workers Directive was negotiated at EU level, Swedish representatives negotiated a clause that said:

“Where ‘agency workers’ are employed on a permanent contract by their TWA (agency/umbrella) and receive pay in-between assignments, the AWR rights to equal pay for an agency worker no longer exists.”

This means that the client doesn’t have to ensure that the contractor receives equal pay to a comparable employee. However, there are a few conditions for the Swedish Derogation Model (SDM) to apply correctly:

1. The permanent contract of employment with the TWA must be in place before the start of the agency worker’s first assignment and the employment must be genuine. However, this has now been clarified by the courts to mean that every time a new contract is signed with the end-hirer or an amendment to the contract is signed, this counts as the ‘first’ assignment. This means that the SDM need only be in place from the start of the latest assignment with the end-hirer onwards
2. A TWA using SDM will have a legal obligation to pay agency workers between assignments a minimum amount for no less than four calendar weeks. The minimum amount that can be paid is 50% of the worker’s average basic pay for the last 12 weeks (or at least the National Minimum Wage).
3. A TWA using SDM will have a legal obligation to pay agency workers between assignments a minimum amount for no less than four calendar weeks. The minimum amount that can be paid is 50% of the worker’s average basic pay for the last 12 weeks (or at least the National Minimum Wage).
4. The TWA must take reasonable steps to seek suitable further employment for the worker when their assignment ends and make sure that this employment is offered to the worker.

Further things to note:

• If you’re employed under an SDM contract, your employment can be terminated by the TWA after four weeks if there is no further work
• Remember, the SDM only applies to pay. It doesn’t remove the equal treatment rights to working hours, holidays, etc., so your client is still liable for ensuring you receive these if you’re ‘in-scope’.

Zero-hour contracts as part of the Swedish Derogation Model

The regulations state that a TWA cannot give a ‘zero-hour’ contract to a worker. However, the minimum amount of hours the contract should be for has not been confirmed. Government guidance warns TWAs against acting outside the spirit of AWR “by structuring contracts that deprive agency workers of the protection provided by pay between assignments”. Whether agency workers on an SDM contract are actually being offered zero-hours contracts, we don’t know, and this has not been challenged at tribunal.

The future of the Swedish Derogation Model (SDM)

In April 2020, the SDM will be abolished. So, from 6th April 2020, all agency workers will have a right to equality of pay after 12 weeks. By 30th April 2020, any TWA who had previously relied on the SDM must provide its agency workers with a statement explaining that the previous contractual provisions (no pay equality) no longer apply.

This change is a result of the 2017 Taylor Report, and is intended to stop the derogation being used exploitatively (because agency workers are not given a choice about the type of contract they’re given, either being forced to accept a derogation contract or potentially receive no work). The Taylor review said that, under the derogation, it’s too easy for agencies to avoid paying workers between assignments by keeping them on longer assignments at lower pay, or by offering them unacceptable assignments when they’re out of work.

The government estimated that 8-10% of all UK agency workers are on SDM contracts. SDM contracts are common in the warehousing and logistics sectors, and Sports Direct was highlighted (by The Department for Business Information and Skills in 2016) as abusing the SDM system.

AWRs’ impact on clients

Administering the AWR can be expensive, due to the following requirements:

• The need to provide the continued supply of data to TWAs that is required by the regulations ƃ Responsibilities to ensure Day 1 rights are given
• The need to provide information on the number of agency workers working temporarily for, and under the supervision and direction of the employer
• Being forced to increase wages if a worker is in scope of AWR.

What’s the result for contractors?

There was a general consensus that costs to agencies and end clients may have risen by a minimum of 10% following the introduction of the AWR. One year after the introduction of the AWR, it was generally felt that the regulations had decreased opportunities for agency workers. However, evidence since 2011 shows that demand for agency workers has stayed solid and opportunities have expanded - in 2012 a survey revealed that 77% of contractors said the AWR had not affected them in any way. A 2019 ONS survey suggested there were around 865,000 agency workers in the UK and this figure was expected to reach 1 million by 2020. However, the government estimates there are approximately 1.3 million agency workers now (using various sources).

Have businesses embraced AWR?

It’s quite difficult to quantify this exactly - there’s certainly evidence that good employers have ensured they meet AWR standards, rather than waiting for a temp/contractor to make a complaint to an employment tribunal.

Initially, it was believed that some businesses would choose to completely avoid adopting the regulations (although there is not much evidence of this in case law). Other tactics businesses have adopted, to avoid AWR, include:

• Only using agencies/umbrellas that employ their contractors on a Swedish Derogation model
• Limiting contracts to 12 weeks or less **
• Slightly altering contractors’ job titles so they have no comparable permanent employee
• Restructuring employment and creating a new position (a ‘unique job’) that’s paid less than most permanent employees doing similar work, meaning that this is taken as the benchmark for the rate of pay
• Increasing the use of employees on fixed term contracts ƃ Increasing overtime amongst existing staff
• Creating an in-house bank of casual workers on zero-hours contracts, or outsourcing to managed service companies
• Using fewer agencies and negotiating exclusivity deals in exchange for them absorbing some or all of the additional costs
• Because the AWR doesn’t generally apply to limited companies, there’s evidence that some clients insist that contractors create their own LCCs before taking on work, or insist that the contractors are employed via an umbrella company, or insist that contactors are engaged on a professional service contract.

** The government anticipated that end-user clients may try to avoid the impact of the regulations by limiting the use of agency workers to periods of less than 12 weeks. The regulations therefore include ‘anti-avoidance provisions,’ that address situations where a pattern of assignments emerge that are deliberately designed to deprive agency workers of their entitlements.

For example, if an assignment lasts less than 12 weeks, and there’s a six-week break before they start again on the same assignment - this is only allowed to happen twice; if it happens a third time, an employment tribunal could take the view that the assignments are being structured in such a way to avoid the agency worker gaining rights under the AWR.

This is called a ‘prohibited’ structure and the employer can be fined by the Tribunal if they’re found doing this.

Best option for contractors?

Most professional freelancers/contractors will want to assure clients that they’re not ‘in-scope’ of the AWR so that the client doesn’t have increased costs associated with hiring them. One option could be to create your own limited company to operate through.

You should consider this option if:

• You aren’t daunted by the thought of having legal responsibility for your own limited company and all the record keeping and filings needed (Crunch can help with all of these)
• You’re worried that working under an umbrella company could limit your work offers from clients if they are concerned about the cost of the AWR
• You’re unhappy about the cultural implications of being a permanent employee of an umbrella company and unhappy with the risk of your permanent contract with an umbrella company being terminated after four weeks
• You don’t want to be caught by the ‘24 month rule’ that limits your ability to expenses as a contractor if you work through an umbrella company.

Could the AWR be applied to limited company contractors?

We don’t think this will often be the case. Although there still hasn’t been a test

case to help us yet (as far as we can tell), the AWR guidance says:

• Contractors who are genuinely in business on their own account will be excluded
• Those who find work through a TWA, but who are in business on their account, will be excluded if they have a business-to-business relationship with the clients.

The government’s view

Simply putting earnings through a limited company would not in itself put individuals beyond the possible scope of the regulations.

So, the statutory test is that if there’s clear evidence in a contract that the limited company contractor (LCC) is not under the supervision and direction of the hirer, the LCC will be excluded from the AWR.

The IR35 ‘right of substitution’ test can also indicate whether or not an LCC contractor is ‘in scope’ or ‘out-of-scope’ of the AWR. If a worker is contracted to perform work and services personally, they’re likely to fall ‘in-scope’. However, if the worker could satisfactorily substitute another worker in their place, they’re likely to fall ‘out-of-scope’. It’s also clear that a lot of LCCs will be ‘out-of-scope’ simply because they’ll be paid more than comparable permanent employees. However, contractors who provide sub-contractors could be ‘in-scope’ of the AWR (the sub-contractors would be ‘in-scope’), unless the contract between the parties demonstrates that the contractor is a client or customer of the sub-contractor. Non-compliance of AWR, in this situation, would lead to any settlement owed to the sub-contractor being paid by the main contractor.

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Legal obligation to inform

Agencies have a legal obligation to establish whether an individual is included or excluded in the AWR. Many agencies and umbrella companies provide forms for contractors to confirm that they’re in business on their own account and thus ‘out-of-scope’.

If you’re asked to opt-out, you have no legal obligation to do so. You can choose to opt-in to the AWR, but if you do, your rate of pay may be lower because of the admin costs incurred to administer the AWR for the agency and the hirer, and you may not be offered work.

Some hirers are also insisting that the agency provides an indemnity against claims that might be brought by the worker against the end hirer.

Disputing employment status

If a contractor believes they should be ‘in-scope’ of the AWR, but are being told they are ‘out-of-scope’, they may dispute their employment status at an employment tribunal. Unlike IR35 (where status is currently enforced by HMRC in the private sector, but will be decided by the client from April 2020, and contractors are responsible for proving they are not caught by IR35), the AWR is different and an agency worker can decide to take a case to an employment tribunal if they believe they’re being denied rights under the AWR. 

At tribunal, it’s up to the agency and end hirer to prove they’re correct about the agency worker’s status. Both the hirer and the TWS can be found liable for failure to provide equalised terms to an agency worker. The employment tribunal will consider if the description of the arrangement in the contract reflects the reality of the relationship, and will try to decide:

• ƃ Whether the individual is in business on their own account or not
• Whether they have a business-to-business relationship with the end client.

When assessing the self-employed status of an individual, an employment tribunal is likely to examine the following:

• The actual terms agreed between the parties in both the contracts between the individual and the agency, and the agency and the client
• The degree of autonomy that the individual has in determining how the work is undertaken
• The degree of supervision, if any, that the end client exercises over the individual 
• Whether the individual (or their accountant) prepares and submits his own accounts to HMRC
• Whether the individual is entitled to be paid during periods where no work is being carried out
• The level and degree of financial risk which the individual is exposed to under the contract(s) and the extent to which the individual is able to increase their own profit
• Whether there is a contractual requirement for the individual to provide services personally. Although, this requirement will not in itself rule out that the hirer or agency are clients or customers of the individual’s company
• Whether the individual supplies tools, equipment or materials for the purpose of the assignment
• Whether the individual is obliged to work exclusively for one client or whether they can in fact work for more than one client at a time
• Whether the individual has fixed hours of work or whether they can choose when they work
• If the contractual arrangements do not reflect the reality of the relationship despite what the contract says - then individuals are likely to fall ‘in-scope’ of the regulations

Much of the AWR guidance reflects the IR35 legislation, but no official link has been made between the two to date. As such, it’s likely - although still not confirmed - that the AWR will apply to LCCs if their working practices fall inside IR35.

Other Developments

• An employment tribunal confirmed in early 2013 that agency workers have the right not to be discriminated against by the organisation they’re supplied to work at (The Equality Act 2010)
• In April 2013, the Parental Leave Regulations were amended to extend the right to request flexible working to agency workers who are returning from unpaid parental leave and have one years service
• An Italian case that went to the European Court of Justice (ECJ) in June 2013 ruled that agency workers do not have rights under the EU Fixed-Term Work Directive (which in the UK is the Fixed-Term Employees, Prevention of Less Favourable Treatment Regulations 2002). Agency workers are not specifically excluded from these regulations and while in Europe it’s accepted that agency workers are not entitled to the same rights as an employee, the same principle is not made clear in UK law. There are calls for the AWR to be tightened up on this aspect.

When does equal treatment NOT apply?

The right to equal treatment as an agency worker does NOT apply to:

• Bonuses that relate to the hirer’s corporate performance or are given to reward long service
• Loans
• Expenses
• Company Pension Schemes (agency workers will be covered by new automatic pension enrollment schemes introduced by the Government since October 2012)
• Health or life insurance/assurance schemes
• Share option schemes
• Family leave-related pay that is above the statutory minimum
• Occupational sick pay schemes (agency workers already have a right to receive statutory sick pay)
• Payment for time off for trade union activities
• Occupational maternity/paternity/adoption pay
• Redundancy pay
• Notice pay (either statutory or contractual that is linked to the loss of employment).

The regulations also do not require agency workers to be integrated into the hirer’s performance appraisal systems.

Employment Tribunal self-employed tests

In assessing the (self-)employed status of an individual, an Employment Tribunal is likely to examine the following:

• The express terms agreed between the parties in both the upper and lower contracts (the contracts between you and the agency and the agency and the client)
• The degree of autonomy that the contractor has in determining how the work is undertaken
• The degree of supervision, if any, that the end user client exercises over the contractor
• Whether the contractor (or their accountant) prepares and submits his own accounts to HMRC
• Whether the contractor is entitled to be paid during periods where no work is being carried out
• The level and degree of financial risk which the contractor is exposed to under the contract(s) and the extent to which the contractor is able to increase his own profit
• Whether there’s a contractual requirement for the contractor to provide services personally (although the fact that this requirement exists won’t in itself rule out that the hirer or agency are clients or customers of the contractor’s company)
• Whether the contractor supplies tools, equipment, materials for the purpose of the assignment
• Whether the individual is obliged to work exclusively for one client or whether they can in fact work for more than one client at a time
• Whether the individual has fixed hours of work or whether they can choose when they work.

If the contractual arrangements don’t reflect the reality of the relationship (e.g. despite the wording of a contract, the actual reality is that the individual isn’t in business on their own account, and they work under the supervision and direction of the hirer), individuals are likely to fall into scope of the regulations.

A number of important cases where tribunals have looked at ‘employment status’ and whether the contractual arrangements reflect the reality of the arrangement are worth further reading:

• What employment status do I have? Your contract may not provide the answer!
• Employment Law: Flexible working – what has changed?

So, in certain circumstances, it could be possible that a limited company contractor could be within the scope of the AWR.