Updated Guidance for Umbrella Companies from HMRC


ESM2035 – Overarching Contracts of Employment
Legal position
In order for an overarching contract to be a contract of employment there must be mutuality of obligations during the gaps between assignments; and the mutual obligations during the gaps must be obligations which relate to the provision of payment for work personally performed by the worker. Provided that exists and the engager exercises a sufficient degree of control over the worker and further that other terms and conditions are consistent with the contract being an employment contract, it will be an overarching employment contract.
Read more: http://www.hmrc.gov.uk/manuals/esmmanual/ESM2035.htm

ESM2045 – Overarching Contracts of Employment
Guaranteed Minimum Hours
A genuine contractual obligation on the part of the employer to guarantee a minimum number of hours work in any 12 month period is likely to be sufficient to provide an obligation on the part of the employer in the gaps between assignments.
Read more:  http://www.hmrc.gov.uk/manuals/esmmanual/ESM2045.htm

ESM2065 – Overarching Contracts of Employment
Miscellaneous Contractual Issues

Apportionment Act 1870
Many contracts purporting to be overarching contracts of employment may include a clause which provides that “The provisions of the Apportionment Act 1870 shall not apply to this contract.” The Act itself is not directly concerned with any obligation to provide work. It is concerned only with the right to a salary and its deemed accrual on a day to day basis. Accordingly, applying or disapplying the Act does not create an obligation on an employer to offer work. It has nothing to do with an obligation at all.
Read more:http://www.hmrc.gov.uk/manuals/esmmanual/ESM2065.htm
ESM0543 – Guide to determining status: mutuality of obligation

The significance of mutuality of obligation is that it determines whether there is a contract in existence at all. Without mutuality of obligation there can be no contract of any kind.
Only when the basic requirements for mutuality of obligation have been identified is it possible to then consider whether the contract is a contract of employment or a contract for Services (self-employment). The basic requirements as to the mutual obligations necessary to determine whether there is a contract in existence at all are:

  • that the engager must be obliged to pay a wage or other remuneration, and
  • that the worker must be obliged to provide his or her own work or skill.

These basic requirements could be present in either a contract of service or a contract for services and, on their own, will not determine the nature of a contract.
Read more:http://www.hmrc.gov.uk/manuals/esmmanual/ESM0543.htm