The "Conduct Reg's" are virtually unenforceable against your intermediary

[craig1]

Out of interest, I just had a look at Jobserve and the very first job I found when I hit search had a qualifier at the bottom that said the agency was acting in the role of Employment Business. Would such a blunt statement override any claims to the contrary in court? After all, if you're putting yourself out as an Employment Business then you cannot then hide from the responsibilities that go with it.

[malvolio]

Dear Malvolio,

You can declare yourself opted in or opted out, no declaration or an ineffective declaration means you by default you are opted in.

No. Absolutely not. The Opt Out was negotiated to allow a company to declare that it did not want the Regulations to apply in their entirety because it would cause major problems where companies were using sub-contractors of various kinds, mostly in Engineering rather than IT. It was the agencies that took it to mean they could re-engineer their contracts to allow them to sidestep the more onerous and non-profit-making elements of the hiring process such as proper ID checks.

Putting the "Conduct Reg's" to one side for the moment, the issue here is "the predominate control" issue and not just "any control" which in legal terms is considered the definite article.

OK. Case Law covers that part fairly clearly in my view: if the client can dictate how, when or where YourCo delivers the work and/or who actually delivers it, there is Direction and Control of a sufficient level to make it a contract of service, not a contract for services, hence IR35 applies. You forget that every IR35 case is different (and Clearcase especially so, on the face of it): the measure of control is subjective and can even change over the life of a given engagement. It is very risky to use one case to prove another, there are too many variables.

[Rory Dwyer]

Looking at some of my old contracts, I see that at least one of them says "<agency> enters into this Contract in its capacity as an Employment Business as defined in the Conduct Regulations"

Since part of the judgement seems to hinge on CNL not being defined as an Employment Business (and therefore there is nothing to opt out of), I'd be interested to see whether that has any impact on any future cases.

Dear Dirty Dog,

The wording of the parties has no relevance if pre-dominant control has not passed, or can not be proven to have passed.

This also does not take into account, the position of the hirer in that declaration.

[northernladuk]

The contractor was one of circa 20 contractors at this particular client. He along with another and a sales manager of our company, whilst under contract and employed respectively set up a competing company 'SAP Select Ltd' unbeknownst to the Directors of CNL and attempted to acquire the proprietary confidential information of CNL.

This act, regardless of being unethical and immoral, was a clear breach of contract and the monies were withheld for damages, of which they were substantial. That is another issue, which I am not at liberty to discuss due to on-going civil litigation.

Interestingly, another reason why the "Conduct Reg's" could not be enforced in this regard also.

All of the other contractors were paid in full and without issue.

So this has been going on a long time? This company was dissolved in 2011 with Mr Butt resigning in 2010.

So the original complain was about contract breach and they have used the this element to try get out of it? I would also like to see the case in detail as from what Rory says the opt in/out case has come off the back of something more telling. The CUK article doesn't really give the whole picture if this is the case.

[DirtyDog]

Dear Dirty Dog,

The wording of the parties has no relevance if pre-dominant control has not passed, or can not be proven to have passed.

This also does not take into account, the position of the hirer in that declaration.

The CUK article says

So the judge decided that ultimately, “the issue before me” is whether CNL meets the definition of an ‘employment business,’ as defined under the Employment Agencies Act.

I have a contract which says "<agency> is an Employment Business".

Are you suggesting that the agency can turn round in court and say "oh, we're not an Employment Business, so the agency regulations don't apply"?

Sounds like having your cake and eating it.

[Rory Dwyer]

Dear Malvolio,

I respect your right to have an opinion, and you are more than welcome to have any opinion you wish. With regards to the "Conduct Reg's" this particular case decision was clearly subject to a higher court ruling and the sitting Judge had no option but to accept the position.

Just as any lower court in the future will be bound by the judgements of the preceding higher court judgements or be open to appeal at the very least.

To ignore it would be folly, regardless of any opinion you may wish to hold.

[northernladuk]

The CUK article says


I have a contract which says "<agency> is an Employment Business".

Are you suggesting that the agency can turn round in court and say "oh, we're not an Employment Business, so the agency regulations don't apply"?

Sounds like having your cake and eating it.

Sounds like it to me as well.

Anyone care to comment on my post about control as well? Am I barking up the wrong tree or would our efforts to not be controlled by the client also mean they don't apply?

[Rory Dwyer]

The CUK article says


I have a contract which says "<agency> is an Employment Business".

Are you suggesting that the agency can turn round in court and say "oh, we're not an Employment Business, so the agency regulations don't apply"?

Sounds like having your cake and eating it.

Dear DirtyDog,

Without being facetious , I could declare myself as "the queen of sheba" but unless I satisfy the statutory definition of "the queen of sheba", I am not "the queen of sheba" in the courts eyes

[Rory Dwyer]

Sounds like it to me as well.

Anyone care to comment on my post about control as well? Am I barking up the wrong tree or would our efforts to not be controlled by the client also mean they don't apply?

Dear Northernladuk,

You are correct, but it goes a lot deeper than what you are suggesting and this also does not take into consideration of the legal responsibilities of the hirer by accepting such a declaration.

[craig1]

So this has been going on a long time? This company was dissolved in 2011 with Mr Butt resigning in 2010.

So the original complain was about contract breach and they have used the this element to try get out of it? I would also like to see the case in detail as from what Rory says the opt in/out case has come off the back of something more telling. The CUK article doesn't really give the whole picture if this is the case.

Can I assume then that the contractor was particularly daft in signing personal indemnities if there are still civil cases going on? If not, surely the protections of limited liability apply?

Yes, some people are still daft enough to sign personal indemnities...