ESM2005 - Agency workers: right of supervision etc as to the manner in which services are rendered

Supervision, direction or control need not be exercised in practice but someone must have the right to do so. The person having or exercising the right can be the agency, the client or some other person.

The exercise or right of supervision, direction or control must be over the manner in which the services are rendered. Supervision, direction or control over what is to be done, where or when it is to be done is not needed. What is important is whether there is supervision, direction or control over how the work is done.

In Bhadra v Ellam (60TC466) a doctor did locum work at hospitals as a Senior House Officer, Registrar and Senior Registrar. He was subject to a right of supervision, direction or control over the manner in which he worked. If he had merely been subject to directions as to what to do next, that would not have been sufficient.

In the 1985 DSS case, Staples v Secretary of State for Social Services, the judge decided that the agency legislation did not apply in the case of an engagement as a relief head chef. The reason for this decision was that the measure of discretion held by the head chef showed that he was not subject to direction by the management over how he should do the job. Management's right to decide what menus were to be prepared was irrelevant: management was determining what the job entailed rather than how it should be done. It should be noted that it was conceded that the legislation did apply in relation to under-chef engagements because there was control as to the manner in which their services were provided.

See the guidance at ESM0526 onwards as regards control over the manner in which a job is done.