Pending contract offer but must opt out and accept withholding day rate

[MrMarkyMark]

You have had one of the worst experiences I've seen for awhile to be honest. Normally they are OK'ish and get easier as you learn the game. You'll hear the can't progress if you don't opt out again sometime but it's not that common but hopefully this will be the one and only time this retainer rubbish will rear it's head. It will get easier.

+1, sounds like one of the worst experiences I've heard of.
Never heard of this sort of retainer, if I had I would have avoided it.

[BlasterBates]

Opt in or opt out, doesn't matter, if you're a business you're not covered by the regulations regardless of what you say. To get your money in the event of a dispute you would have to prove that you're under the control of the client. That evidence will then be filed away with all your other records the agency are obliged to hold and presented to HMRC should there be an investigation. Letters explicitly imploring how you are controlled by the client in order to demonstrate you're covered by the employment agency conduct regulations might raise a judge's eyebrow.

My advice, get terms and conditions you want in the contract not rely on a piece of legislation that doesn't apply to anyone not under the control of the client.

[Sympatico]

Opt in or opt out, doesn't matter, if you're a business you're not covered by the regulations regardless of what you say.

I presume you are referring to the judgement in Accenture Services Ltd v HM Revenue and Customs & Ors [2009] about the level of control, the meaning of employment business in the Employment Agencies Act 1973 and whether businesses are in the scope of the 1973 regulations.

It has been suggested that as the Conduct Regulations 2003 refer to the Employment Agencies Act 1973 for its definition of employment business, then the same argument can be used to suggest businesses are not in the scope of the Conduct Regulations.

I am not a lawyer, but I have three comments on that idea

1. The Accenture case makes no reference the Conduct Regulations
2. In making his judgement and referring to the Employment Act 1973, Mr Justice Sales stated It is not plausible to suppose that Parliament intended to bring businesses within the scope of such a regime on the basis of the extremely diluted test [of control]
3. In contrast if you read the Conduct Regulations and its amendments, it is entirely clear that Parliament intended that work-seekers that are businesses are included within the scope the regulations. e.g. Regulation 32 specifically details the Application of the Regulations to work-seekers which are incorporated.

[BlasterBates]

I presume you are referring to the judgement in Accenture Services Ltd v HM Revenue and Customs & Ors [2009] about the level of control, the meaning of employment business in the Employment Agencies Act 1973 and whether businesses are in the scope of the 1973 regulations.

It has been suggested that as the Conduct Regulations 2003 refer to the Employment Agencies Act 1973 for its definition of employment business, then the same argument can be used to suggest businesses are not in the scope of the Conduct Regulations.

I am not a lawyer, but I have three comments on that idea

1. The Accenture case makes no reference the Conduct Regulations
2. In making his judgement and referring to the Employment Act 1973, Mr Justice Sales stated It is not plausible to suppose that Parliament intended to bring businesses within the scope of such a regime on the basis of the extremely diluted test [of control]
3. In contrast if you read the Conduct Regulations and its amendments, it is entirely clear that Parliament intended that work-seekers that are businesses are included within the scope the regulations. e.g. Regulation 32 specifically details the Application of the Regulations to work-seekers which are incorporated.

Conduct of employment regulations: a guide to opting in or out

If you read the regulations they apply to the placement of temporary and permanent employees.Note the term employment

The regulations are designed to apply to workers who are controlled by the client, which means that not only do the vast majority of contractors simply not require the protection which the regulations bring, but also as skilled professionals in business in their own right are not controlled by their clients and so technically the regulations will not apply.

For a contractor it's a non-issue because he is not controlled by the client.

If you are controlled by the client, then you might want to think very hard about what that means for your IR35 status.

Imagine suing the client because you argue, you're covered. Then you'll be submitting a whole load of evidence to the agency about the fact that you are covered because you're controlled by the client. That documentation will be lodged with the agency and would be part of the info an HMRC inspector would use to determine your status. It might at least raise the eyebrows of a judge looking at your case.

The reality is faced with the an agency declaring you're not covered by the regulations, no contractor is going to counter that arguing that he was a "temporary employee", therefore it's a non-issue for anyone not inside IR35.

[Sympatico]

You can be in the Conduct Regulations and still not under control

Conduct of employment regulations: a guide to opting in or out

If you read the regulations they apply to the placement of temporary and permanent employees.Note the term employment

The regulations are designed to apply to workers who are controlled by the client...

I disagree with that advice, which is from undeclared author

I say you can be within the protection of the Conduct Regulations in a contract for services
i.e. not under the control of the client. (unofficial lay opinion)

-----------------------------------------------------------------------------
This is straight from the Conduct Regulations, you can check it yourself...
Regulation 32 (a) states any reference to a work-seeker, how so ever described, includes a work-seeker which is a company
Regulation 15 (a) requires an employment business to agree with the work-seeker whether the work-seeker .. will be... under a contract of service [controlled]...or a contract for services [not controlled].

This is the only part of the Conduct Regulations that directly states where a work-seeker might be under control of the hirer.
Regulation 2 Interpretation. In these Regulations, unless the context otherwise requires—...
“work-finding services” means services ... provided— ...
c) By an employment business to a person [work-seeker] ... to find [a client]... with a view to the ... person becoming employed by the employment business and acting for and under the control of the [client];

This reflects the relationship of a work-seeker that is a person under a contract of services

In the context of a work-seeker that is a company under a contract for services , then the context requires the interpretation to reflect that relationship
e.g. the following meaning can be implied

“work-finding services” means services ... provided— ...
c) By an employment business to a company [work-seeker] ... to find [a client] ... with a view to the company entering into a contract for services with the employment business and providing services for the [client];

[SueEllen]

I disagree with that advice, which is from undeclared author

I say you can be within the protection of the Conduct Regulations in a contract for services
i.e. not under the control of the client. (unofficial lay opinion)

You can argue as much as you like. Until there is a case in a higher court that is ruled on then none of what anyone thinks or says is legally binding. This doesn't matter whether you are a lay person, solicitor, QC or judge.

[NickNick]

You're rightly stressed out. I've never heard of a retainer on an IT contract before. .

I've interviewed for a couple of contracts at Orange where they had a retainer of 10% that was dependant on you hitting an undefined "target" in the three months. So the day rate was (say) 350 and every three months if you hit your "target" you got a bonus of 2280 or thereabouts. I've not taken them up on either occasion.

[SueEllen]

I've interviewed for a couple of contracts at Orange where they had a retainer of 10% that was dependant on you hitting an undefined "target" in the three months. So the day rate was (say) 350 and every three months if you hit your "target" you got a bonus of 2280 or thereabouts. I've not taken them up on either occasion.

Odd that...

[Sympatico]

You can argue as much as you like. Until there is a case in a higher court that is ruled on then none of what anyone thinks or says is legally binding. This doesn't matter whether you are a lay person, solicitor, QC or judge.

You are quite right of course!

Then please take what I said as a possible defence against "the Conduct Regulations are an indicator of control" argument, which gets a lot of press.

[SueEllen]

You are quite right of course!

Then please take what I said as a possible defence against "the Conduct Regulations are an indicator of control" argument, which gets a lot of press.

We've heard it all before.

Hence the advice is to ensure the rest of your contract is as water tight as possible so you don't have to worry.