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

[tractor]

...

This whole thread is tl;dr and when you have legal argument presented by what with the best of intentions can only be a 'barrack room lawyer' I am completely lost. Every term the OP uses, I have to go look up the legal definition for to see if it is even real and it is exhausting.

The bit that makes me think that this is all wrong, regardless of any judgement is the reliance on 'direction and control' being the same in legal terms as 'predominant control'. I believe the two even if they do have legal definition, are entirely different.

More to the point, I always opt in and will strike out any and every clause in a contract that entitles the intermediary to withold funds for any reason whatsoever. To the point of walking.

Another thing I don't understand was the early part of the thread istr there was some argument over whether the intermediary was an employment business or not. The EAA makes it very clear what the distinction is.

If the OP wants to clear these points up, please feel free but please don't invent terms to make your case.

[Rory Dwyer]

This whole thread is tl;dr and when you have legal argument presented by what with the best of intentions can only be a 'barrack room lawyer' I am completely lost. Every term the OP uses, I have to go look up the legal definition for to see if it is even real and it is exhausting.

The bit that makes me think that this is all wrong, regardless of any judgement is the reliance on 'direction and control' being the same in legal terms as 'predominant control'. I believe the two even if they do have legal definition, are entirely different.

More to the point, I always opt in and will strike out any and every clause in a contract that entitles the intermediary to withold funds for any reason whatsoever. To the point of walking.

Another thing I don't understand was the early part of the thread istr there was some argument over whether the intermediary was an employment business or not. The EAA makes it very clear what the distinction is.

If the OP wants to clear these points up, please feel free but please don't invent terms to make your case.

Dear Tractor,

The terms "direction and control" are not the same as "predominant control". Given your comments I will let someone else explain the difference.

I am giving the opinions of Chief Justice Sales and District Judge Workmen. Individuals paid by the state to do just that. Their opinions carry weight, mine, I accept, do not.

It would not make sense to take the definitions of the EAA without awareness of the rulings applicable to the statute.

The cases are there for all to read see and you can come up with your own opinions,

Opt in if you so wish, as I have said, it matters not a jot to me. Opt out subsequent to introduction or supply and then try to claim you are opted in, all the while thinking you have protection of the statute.

Just like the contractor in the BIS v CNL case, he thought he had the protection of the statute and in the opinion of the article in contractor uk he was an "IT Contractor, the loser in a botched bid to prosecute recruiter"




I try to stick to the opinions of people that matter, so that your awareness of those rulings can help you make more informed balanced decisions.

[tractor]

Dear Tractor,

The terms "direction and control" are not the same as "predominant control". Given your comments I will let someone else explain the difference.

I am giving the opinions of Chief Justice Sales and District Judge Workmen. Individuals paid by the state to do just that. Their opinions carry weight, mine, I accept, do not.

It would not make sense to take the definitions of the EAA without awareness of the rulings applicable to the statute.

The cases are there for all to read see and you can come up with your own opinions,

Opt in if you so wish, as I have said, it matters not a jot to me. Opt out subsequent to introduction or supply and then try to claim you are opted in, all the while thinking you have protection of the statute.

Just like the contractor in the BIS v CNL case, he thought he had the protection of the statute and in the opinion of the article in contractor uk he was an "IT Contractor, the loser in a botched bid to prosecute recruiter"




I try to stick to the opinions of people that matter, so that your awareness of those rulings can help you make more informed balanced decisions.

The emboldened part is what I refer to - I know the difference, hence my questioning the entire premise. If they are different from a legal perspective, why is it a contradictory argument if you rely on the lack of direction and control wrt IR35 then rely on control wrt the Conduct Regs?

Rely on the judgement all you want, it wouldn't be the first time on appeal a judgement was not upheld. The first rule of law is that the law is an ass.

Another thing I don't understand was the early part of the thread istr there was some argument over whether the intermediary was an employment business or not. The EAA makes it very clear what the distinction is.


Was there a reason you didn't clarify that point? To answer my own question, I just read the covering article and have come to the following conclusion...

You should change the title of this thread to Do not rely on the Conduct Reg's unless the agent will guarantee in writing to be an employment business within the definition of the Conduct Regs.

It seems to me the case was lost on a combination of the BIS botching it and the agent wriggling out of being an agent.

[Rory Dwyer]

The emboldened part is what I refer to - I know the difference, hence my questioning the entire premise. If they are different from a legal perspective, why is it a contradictory argument if you rely on the lack of direction and control wrt IR35 then rely on control wrt the Conduct Regs?

Rely on the judgement all you want, it wouldn't be the first time on appeal a judgement was not upheld. The first rule of law is that the law is an ass.

Another thing I don't understand was the early part of the thread istr there was some argument over whether the intermediary was an employment business or not. The EAA makes it very clear what the distinction is.


Was there a reason you didn't clarify that point? To answer my own question, I just read the covering article and have come to the following conclusion...

You should change the title of this thread to Do not rely on the Conduct Reg's unless the agent will guarantee in writing to be an employment business within the definition of the Conduct Regs.

It seems to me the case was lost on a combination of the BIS botching it and the agent wriggling out of being an agent.

Dear Tractor,

CNL is an employment business who supply highly skilled individuals whom are not under the predominant control of the hirer or the employment business.

The individual supplied by the work seeker are under the control of themselves and as a consequence their work seeker

[tractor]

...

Dear Tractor,

CNL is an employment business who supply highly skilled individuals whom are not under the predominant control of the hirer or the employment business.

The individual supplied by the work seeker are under the control of themselves and as a consequence their work seeker

That's as maybe. However my question to you (and which you have failed to answer) was are you or are you not an employment business? did you pass yourself off as an employment business when engaging Clearwater? It should be easy enough to answer given that if you are an employment business, you are required to make that clear. Nowhere on your web site is it mentioned. I don't know what your contracts state and indeed whether you are registered as an employment business but if you are not, why did your contract require the supplier to opt in OR out and if you are why did you claim you were not in court?

Instead if clarifying anything, your thread is quite confusing. But given that the emboldened part is clear, you cannot have it both ways. I would suggest the judge got it wrong - it has happened before and will continue to happen - given that whoever has the most money and/or will usually wins a case.

[Rory Dwyer]

That's as maybe. However my question to you (and which you have failed to answer) was are you or are you not an employment business? did you pass yourself off as an employment business when engaging Clearwater? It should be easy enough to answer given that if you are an employment business, you are required to make that clear. Nowhere on your web site is it mentioned. I don't know what your contracts state and indeed whether you are registered as an employment business but if you are not, why did your contract require the supplier to opt in OR out and if you are why did you claim you were not in court?

Instead if clarifying anything, your thread is quite confusing. But given that the emboldened part is clear, you cannot have it both ways. I would suggest the judge got it wrong - it has happened before and will continue to happen - given that whoever has the most money and/or will usually wins a case.

It is not the fault of CNL that there exists ambiguity in the law. Much as it is not the fault of a contractor that there isn't a clear test of contract for or of service.

Therefore, as a belt and braces approach to supplying highly skilled individuals whom are not under the predominant control of the employment business or hirer.

A position, if the contractor was up against the HMRC for IR35 purposes they would be very glad of our position.

In this engagement, the contractor had opted out prior to supply and the hirer was aware of this.

Our contracts were clear on the issue of control and the fact that we are stated as an employment business. I will repeat, for this engagement we supplied an individual through his PSC to a hirer but who was not under the predominant control of that hirer. The individual and the work seeker were under their own control.

We weren't obliged to declare anything in court, because the contractor had signed a contract stating that he wasn't controlled as did the hirer, under cross examination, the contractor and the hirer both admitted that the hirer did not control the contractor and they refused to adduce any evidence whatsoever that any form of direction and control existed as rights or were indeed exercised.

Such was the position, the judge found it relatively easy to come to the conclusion that in accordance with the precedent in Accenture Services vs HMRC 2003 that predominant control had not passed to the hirer.

We sought disclosure many months prior to the trial hearing of evidence of the control exercised by the hirer over the contractor from BIS. BIS procrastinated to disclose and never did even though this was part of a pre trial order along with other requested materials, namely the tax records of the contractor, to show the IR35 position, which BIS also procrastinated which meant they were not available for the hearing.

CNL sought clarification from BIS through multiple freedom of information act requests (all of which they obfuscated in giving a response to time bar prior to trial) on the areas of ambiguity and leading up to the trial BIS presented contradictory facts to their own evidence as to the treatment in law on certain aspects.

With regards to money, CNL does not have more funds or resources available to it than BIS. Hence why i am fairly well versed in the issues as I had to research and study our position.

[Boo]

PGC with egg on their face

ISTM this whole affair just proves the incompetence of the PCG in everything they do, and specifically their absurd negotiation of the opt-out clause in the first place. IMO it's time they wrapped up and called it a day. After wiping the egg off their faces...

Boo

[TheFaQQer]

That's as maybe. However my question to you (and which you have failed to answer) was are you or are you not an employment business? did you pass yourself off as an employment business when engaging Clearwater?

The contract describes the agency as an Employment Business - there is an explicit clause which says that they are an Employment Business.

The court ruled that they aren't an Employment Business.

Rory has already expressed his thoughts on this - they could describe themselves as anything they want in the contract, but if the court doesn't accept that, then there is no harm done.

Rory has not answered whether the description of CNL as an Employment Business was incompetence, ignorance or fraud - merely to say that they adapted a standard contract from REC.

[malvolio]

ISTM this whole affair just proves the incompetence of the PCG in everything they do, and specifically their absurd negotiation of the opt-out clause in the first place. IMO it's time they wrapped up and called it a day. After wiping the egg off their faces...

Boo

Except the PCG supports a lot more than BoS IT contractors. The opt out was only negotiated at the request of their members who use subbies of various flavours. It's the agencies that decided to use it for their own money-saving purposes and who are therefore creating the confusion. If you want to fight a war, a good first step is to identify the correct target.

[Rory Dwyer]

The contract describes the agency as an Employment Business - there is an explicit clause which says that they are an Employment Business.

The court ruled that they aren't an Employment Business.

Rory has already expressed his thoughts on this - they could describe themselves as anything they want in the contract, but if the court doesn't accept that, then there is no harm done.

Rory has not answered whether the description of CNL as an Employment Business was incompetence, ignorance or fraud - merely to say that they adapted a standard contract from REC.

I have clearly answered this question multiple times