Agency worker regulations and IR35

[Support Monkey]

No, that's an urban myth. Losing a tax case doesn't change your employement status or vice versa. What would actually happen is you'd be terminated immediately since you are about to cost the client several grand in employers NICs

Google "the nuclear option" and you will see why it doesn't work.

Thanks Mal

But if they catorgorically state you are not self employed or in business of your own accord would this not change your employment status because surely you have to be one or the other

[malvolio]

Thanks Mal

But if they catorgorically state you are not self employed or in business of your own accord would this not change your employment status because surely you have to be one or the other

No. Add the rider "...for the purposes of tax calculation" and it makes sense.

[TestMangler]

But, the same tests are used by the courts to determine tax status and employment status.

As far as I know, and am happy to be corrected, no one who has lost an IR35 case has gone on to file an unfair dismissal or similar type case against their previous client.

It has, however, been done the other way round, where someone in the early stages of an IR35 enquiry took an unfair dismissal case against a client, which they spectacularly lost, and that was followed by the 'termination' of the IR35 case by HMRC.

[Wanderer]

As far as I know, and am happy to be corrected, no one who has lost an IR35 case has gone on to file an unfair dismissal or similar type case against their previous client

But we are talking about the Agency worker regulations which haven't taken affect yet so they haven't been tested... The test for a contractor being outside the AWR is pretty much the same as the one for being IR35 caught. Clients and agencies are suddenly going to wake up and help clarify that we are either in business or we are effectively a permie.

[Wanderer]

Don't shout at me, I'm only reporting what we've been told by the guys at BIS who wrote the damned thing and who, we kind of assume, know what they're talking about.

Yeah, there is a lot of "guidance" about how various people think it should have been implemented but it might be best to have a read of the Agency Workers Regulations and see what the actual legislation says rather than what people (many with vested interests) would like to think it should have turned out like.

[Steven@Parasol]

Yeah, there is a lot of "guidance" about how various people think it should have been implemented but it might be best to have a read of the Agency Workers Regulations and see what the actual legislation says rather than what people (many with vested interests) would like to think it should have turned out like.

Wanderer is right, the guidance actually contradicts the legislation in several places and an employment tribunal judge will make their decisions based on what it says in the legislation, not the guidance.

[malvolio]

Wanderer is right, the guidance actually contradicts the legislation in several places and an employment tribunal judge will make their decisions based on what it says in the legislation, not the guidance.

It's worth pointing out that the PCG Guidance was delayed while it was verified against the legislation by an indepenednet legal authority, so hopefully is accurate - or at least, as accurate as anything can be given the vagueness of the source material.

I'm pretty sure that REC took the same precautions

[centurian]

Malvolio (and his PCG sources) may or may not be right - even the most informed (i.e. expensive) opinion is still just an opinion. No-one knows with absolute certainty until it goes before a judge.

I think it would be a tough case to win - and I doubt anyone has the resources/will to fight it, for what would be relatively small gains.

But if the nuclear option does go boom, the blast could easily wipe out a good chunk of the rest of us. If one ClientCo loses such a case and has to cough up a big sum of money, what do you think other ClientCo's will do with their stock of contractors on their books.

If you want to assert "employee rights" in any fashion, you won't get much encouragement on here - for very similar reasons. Our selling point to ClientCo's is that they don't have to put up with that kind of crap from us.

[SueEllen]

Malvolio (and his PCG sources) may or may not be right - even the most informed (i.e. expensive) opinion is still just an opinion. No-one knows with absolute certainty until it goes before a judge.

I think it would be a tough case to win - and I doubt anyone has the resources/will to fight it, for what would be relatively small gains.

Even then it would have to go to a higher court to be case law so expect either side being given leave to appeal all the way until the Supreme court rules.

But if the nuclear option does go boom, the blast could easily wipe out a good chunk of the rest of us. If one ClientCo loses such a case and has to cough up a big sum of money, what do you think other ClientCo's will do with their stock of contractors on their books.

The case would be against the agency as well as the ClientCo.
There have been employment law cases with temps where the agency and end client were equally implicated.

If you want to assert "employee rights" in any fashion, you won't get much encouragement on here - for very similar reasons. Our selling point to ClientCo's is that they don't have to put up with that kind of crap from us.

Yep it would completely screw up the UK market.

[malvolio]

Yep it would completely screw up the UK market.

Which, apart from it being almost impossible to win such a case given you are trying to conflate two compeltely separate legislative lines, is why I for one have never advocated anyone trying. We fight all these battles on the basis of being non-employees and independent businesses. If you think you want to be an employee, get a permie job.

Plus the chances of a half-sensible freelance being done for IR35 or being caught by the AWR are vanishingly small, unless you try really really hard.