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

[LisaContractorUmbrella]

So Rory's company OracleContractors/Contractor Networks Ltd sued a contractor and won and now he's trumpeting the results from the rooftops (without admitting it was him).

Is that the long and short of it?

Sued or screwed?

[DirtyDog]

So Rory's company OracleContractors/Contractor Networks Ltd sued a contractor and won and now he's trumpeting the results from the rooftops (without admitting it was him).

Is that the long and short of it?

No - they were being sued and won - CUK article.

The agency withheld £15k of invoices for work that had been done, and tried to claim an extra £39k because he wanted to bypass the agency and go direct.

"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." - the judge ruled that they weren't an Employment Business, so you couldn't opt out of the regulations.

Having seen how the agency do business, though, it seems more of an eye-opener to avoid this particular agency regardless of the rules - which is a shame because having met some of the people there, I know and like quite a few of them.

[cojak]

No - they were being sued and won - CUK article.

The agency withheld £15k of invoices for work that had been done, and tried to claim an extra £39k because he wanted to bypass the agency and go direct.

"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." - the judge ruled that they weren't an Employment Business, so you couldn't opt out of the regulations.

Having seen how the agency do business, though, it seems more of an eye-opener to avoid this particular agency regardless of the rules - which is a shame because having met some of the people there, I know and like quite a few of them.

From reading that I would say that the contractor was onto a loser as it looked as if he relied on the 'opt-out was invalid because I was introduced first' route, but Rory/CNL extrapolating that to saying that opt in/out is irrelevant for all contracts is a stretch too far.

I'm with Lisa - it would have been interesting to say which way it would have gone if the contractor had been explicitly opted-in.

(But I'm very pleased I'm not an Oracle contractor...)

[craig1]

No - they were being sued and won - CUK article.

The agency withheld £15k of invoices for work that had been done, and tried to claim an extra £39k because he wanted to bypass the agency and go direct.

"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." - the judge ruled that they weren't an Employment Business, so you couldn't opt out of the regulations.

Having seen how the agency do business, though, it seems more of an eye-opener to avoid this particular agency regardless of the rules - which is a shame because having met some of the people there, I know and like quite a few of them.

Not really wanting to take this off-topic but is that judgement the first time a judge has said that a late opt-out is ineffective? I thought that point hadn't been tested before.

[cojak]

Not really wanting to take this off-topic but is that judgement the first time a judge has said that a late opt-out is ineffective? I thought that point hadn't been tested before.

You may be right Craig.

[Rory Dwyer]

I am Rory Dwyer, I am not hiding anything, given my moniker, I am sharing the months if not years of expertise that I have gained in defending an action brought by the BIS.

I would say that when you face criminal convictions your level of research goes a lot deeper than what is required for a five second sound bite.

If you would like to know why the "Conduct Reg's" are virtually unenforceable I am more than happy to share with you.

[malvolio]

No - what Mal and the PCG have suggested is that you don't want to opt out of the agency regulations.

Not quite... What I (and not the PCG, they can fight their own corner) have always said is that the protections offered by the Regs are largely illusory so while opting out or not causes much grief and hand wringing, in reality it matters not a damn. Plus most opt outs wouldn't stand up if challenged anyway, not that I've heard of anyone challenging the results of a dispute that would be determined by their status wrt the Regs.

And it has zip to do with IR35. Never has, never will. If you fail IR35, it's because you've either signed up a rubbish contract or are genuinely and demonstrably not in business on your own account.

What the agent is saying is that there is no point in opting out because unless you can show that the agency is an Employment Business (which in some cases is easier than others), you can't enforce the regulations anyway, so you may as well opt out.

So can we all spot the slight weakness in that assertion...?

[Rory Dwyer]

What I am saying, is that regardless of whether you opt in or opt out of the "Conduct Regs" the statute will not be enforceable if you as a sole director of a PSC and your hirer are not willing to argue that the contractor has handed over predominant control to that hirer.

That is a very difficult argument to make for a number of reasons. Of which should you wish to know why, I will elaborate. To say it has nothing to do with IR35 is misunderstanding the legislation.

I am not on here to gloat at all, having been a contractor myself. If you knew what the contractor did, then you would realise the stance we took.

[Rory Dwyer]

Not really wanting to take this off-topic but is that judgement the first time a judge has said that a late opt-out is ineffective? I thought that point hadn't been tested before.

You are incorrect, the Judge in his summing up stated that the hirer was fully aware of the "opt out" and even though he didn't have to base his decision on this, for the other reasons, he gave clear indications, that the notification did not have to be before introduction or supply, as long as the hirer was aware prior to any termination.

[DirtyDog]

If you knew what the contractor did, then you would realise the stance we took.

It must have been pretty bad for you to withhold £15k of his invoices (as well as trying to charge the extra £39k).