Do self-employed people have rights under the Agency Workers Regulations 2010?

The definition of an agency worker under the Agency Workers Regulations 2010 (SI 2010/93) is an individual who has a contract with a temporary work agency to perform work personally, and who is supplied by the agency to work temporarily for and under the supervision and direction of a hirer. This will include some individuals who are considered by themselves, and perhaps even by HM Revenue and Customs, to be "self employed". Only where the arrangements are such that the agency or hirer is a "client or customer of a profession or business undertaking carried on by the individual", ie it is a business to business relationship, will the individual not be covered by the Regulations.

A tribunal will consider all the factors in a case to determine whether or not the agency (or the hirer) could be described as the individual's "client or customer". For example, a temporary work agency contracts the services of an administration manager who describes themselves as "freelance" and "self employed" and assigns them to work on a project for a hirer where the level of specialist skills required for the assignment is low and they do not work for other clients. On these facts, it is likely that neither the agency nor the hirer is the individual's "client or customer", and they are an agency worker for the purposes of the Agency Workers Regulations 2010.

Where it is the intention of the individual, the temporary work agency and the hirer that the individual is self employed and is not to be covered by the Regulations, it is important that there is clear evidence in a written contract and in practice that the agency or hirer is a client or customer of the profession or business undertaking carried out by the individual.