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

[Rory Dwyer]

If you are the sole director of your own personal service company, and unless you as a contractor are prepared to admit that you have given up control of your self and your company to your hirer.

A situation you do not want as this would confirm compliance with the main pillar of the three pillars of the master/servant relationship and as this would be a key indicator in the IR35 business entity tests.

Also a situation your client does not want as they would then have to comply with the controlled associated companies legislation.

You will not be able to rely on the "Conduct Regulations" as applicable legislation regardless of whether you opt in or opt out, or regardless of whether the hirer was informed prior to introduction or supply.

As in the case of Clearwater Consulting Ltd, cover article 5th March 2014, a contractor will not be able to rely on any protection the "Conduct Regulations" appear to offer.

The Conduct of Employment Agencies and Employment Businesses Regulations 2003 is not applicable to contractors in the above scenario and never has been since 2003.

[Project Monkey]

So, the decission to opt in/out means nothing if you maintain your business outside of IR35. Is that what you're saying?

[cojak]

Isn't this what the PCG/Malvolio has been saying all along?

[DirtyDog]

So, the decission to opt in/out means nothing if you maintain your business outside of IR35. Is that what you're saying?

Opt in / out has no relevance to IR35. It's a line that is typically spun by agents who don't understand the rules and rely on contractors not doing their own research.

[DirtyDog]

Just as an aside, Rory Dwyer is a director of OracleContractors.

OracleContractors is a trading name of Contractor Networks Ltd.

Contractor Networks Ltd is the company that won in the Clearwater case.

So, I suspect that the OP's opinion might be clouded a little bit.

[DirtyDog]

Isn't this what the PCG/Malvolio has been saying all along?

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

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.

[cojak]

Just as an aside, Rory Dwyer is a director of OracleContractors.

OracleContractors is a trading name of Contractor Networks Ltd.

Contractor Networks Ltd is the company that won in the Clearwater case.

So, I suspect that the OP's opinion might be clouded a little bit.

Thanks for that little nugget, DD.

[LisaContractorUmbrella]

From what I have read, the Conduct Regs have no bearing on your IR35 status but, in view of this latest case, your IR35 status could have a bearing on the Conduct Regs. If it can be demonstrated that there is no supervision, direction and control over the individual then the Conduct Regs will not apply regardless of whether or not that individual has opted in or out. It would have been interesting if the Judge's opinion in the case would have been influenced in any way had the individual opted in though.

[cojak]

Just as an aside, Rory Dwyer is a director of OracleContractors.

OracleContractors is a trading name of Contractor Networks Ltd.

Contractor Networks Ltd is the company that won in the Clearwater case.

So, I suspect that the OP's opinion might be clouded a little bit.

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?

[craig1]

I must be missing something... anyone who relies on any terms in the Conduct Regs is hoping for a lot considering the government bodies couldn't really care less, there's nothing in it for them to bother enforcing them... the courts are the primary external remedies for contract breach.

I alway refuse to opt out and every agency contract I've had has had different terms to the opted-out version meaning that it's the contract terms that are relevant. The only two big points I like about the Conduct Regs are the payment enforcement and the handcuff de-restrictions, some people will like other points but they're the ones I like.

On payment: If my contract says I get paid one week after a weekly invoice then I get paid on that schedule or the agency has broken its contract. If there's nothing in there to say otherwise then it's irrelevant what happens at the upstream levels between client and agency. A good contract review will often get this sorted for you.

On handcuffs: These are usually trumped by upstream deals between the client and agency anyway. It can be irrelevant what my contract or the Regs say if the agency can veto me going back at the client level. More often than not the agency and client will come to a financial arrangement and I'll walk on site free of the agency simply because I've insisted on non-opted-out terms.

Those two points alone mean that me insisting on not opting-out results in me getting preferential contract terms that are applicable whether I am actually able to rely on the Conduct Regs or not. Also, many agencies are quite well set on IR35-friendly contracts meaning that the terminology is so obscure in many terms that the agencies cannot completely screw a contractor over even if they wanted to.