Does control influence whether an engagement is one of for service or of service ?

[bartman]

Dear Bartman,

I personally wouldn't get too concerned with the semantics.

I think the semantics you have used are misleading and lend support to you conclusion.

I just don't see how a consequence of doing nothing (i.e. not opting out) means that you have

handed over predominant control of yourself and your PSC to your hirer.

. Talking in terms of opting in implies that the contractor is actually doing something, and you are arguing that doing that thing is then implying a hand-over of control. From a contractor perspective, I just don't see how not signing an opt-out means anything other than exactly that - i.e. doing nothing. There are many other things (almost infinite I suspect) that I don't sign, and I'm pretty sure these don't give away any control of my business either.

You could argue in fact that signing the opt-out is actually handing over more control. It is after all highly advantageous from an agency perspective, giving much greater protection over their business. Extending time before which the contractor can work with the client direct, and meaning that the contractor does not have to be paid until signed time sheets are given are two of the aspects that come to mind. Each to their own, but it doesn't sound like a great idea to me.

I am not making a judgement as to whether this is fair or not from an agency perspective, but regardless I don't see any incentive to sign from a contractor's point of view. If signing implied an engagement for services rather than a engagement of service then that might be worth something - you may possibly be able to argue that not signing would imply the opposite. However - as we know - it's all about the actual contract and the working practice. Not signing something won't change either of those.

[Rory Dwyer]

Thanks Mal, I think this is primarily why the OP didn't answer my question over the apparent confusion over whether his was an employment business (in his other thread), which is clearly defined in the regs and can have no ambiguity which is why I was surprised that it even was under discussion. If the agent doesn't even know this for sure, how can they possibly expect to interpret existing case law around employment status even prior to IR35 let alone after

I remain amazed at the lengths agents will go to in trying to prevent you opting in. My current agent tried all the tricks beginning with You can't opt out or you will be IR35 caught, no one EVER opts out ad nauseum. I made him rewrite much of the contract. Especially the parts where I gave them IPR to everything I ever thought about, even in the past I wouldn't even have bothered if I didn't want the role (which was actually a good one), I would have just let it slide.

Dear Tractor,

CNL is an employment business who provide highly skilled individuals through their respective PSC whom are not under the predominant control of the hirer or the employment business. The individuals are in control of themselves and their respective PSC.

[Rory Dwyer]

I got bored enough to go look up the various references. Apart from the Accenture et al case being primarily one of VAT accounting, the issue of predominant control is quoted to establish which is the primary authority in the control of the work to be done where there are multiple parties to the contract. It has nothing to do with employment per se, since the level of control in question is insufficient to determine a status of employee or not. And it is only really relevant if you are trying distinguish between an Employment Agency, who control their supplied workers, and an Employment Business, who do not; the question being who is predominant, the Employment Agency or the client. Since we contract exclusively through Employment Businesses, or at least, companies who represent themselves as such (since Mr Dyer's appears to be capable of telling porkies about their true nature we need to make the distinction), none of the Accenture case applies. Sadly

So please do continue to entertain us with your verbiage (always a good sign of someone losing the argument), but personally (a) I think you're wrong and anyway (b) I couldn't really care less.

Dear Malvolio,

If what you say is true, why did the judge in BIS v's CNL disagree with you ?

[malvolio]

Dear Malvolio,

If what you say is true, why did the judge in BIS v's CNL disagree with you ?

a. What?
b. WGAS.

[Rory Dwyer]

a. What?
b. WGAS.

Dear Malvolio,

A. "None of the Accenture case applies" in which case why did District Judge Workmen decide that it did ? Do you want to let the District Judge know he got it wrong or shall I tell him the next time I see him ?

B. WGAS ? Any contractor whom seeks to rely on the Conduct Regulations as applicable legislation with regards to their engagement when they have not passed over predominant control.

[Ticktock]

In short...
I won't rely on the regs.
I will not Opt Out.
I will call you, and any other agency, out when you lie and tell me that not opting out will mean that I am IR35 caught, that you've never heard of anyone wanting to not opt out before, etc.

Now why don't you start another thread on the same topic? Three obviously aren't enough.

[northernladuk]

Rob.. Any chance you can drop the 'Dear xxxx' at the start of your response. We are in a conversation not writing formal letters. It sounds daft.

[Rory Dwyer]

Rob.. Any chance you can drop the 'Dear xxxx' at the start of your response. We are in a conversation not writing formal letters. It sounds daft.

No problem, the reason I was being over courteous was because, I have read a number of threads where certain individuals communicate with a certain aggressiveness and impoliteness and I wanted to emphasis that I am not trying to point score or become personal but I am just trying to share my experiences for the readers benefit.

I also won't get upset that that I am bring referred to as Rob Dyer, maybe I should use that as my moniker instead of my real name.

[Rory Dwyer]

In short...
I won't rely on the regs.
I will not Opt Out.
I will call you, and any other agency, out when you lie and tell me that not opting out will mean that I am IR35 caught, that you've never heard of anyone wanting to not opt out before, etc.

Now why don't you start another thread on the same topic? Three obviously aren't enough.

This thread is dealing with the level of direction and control needed for the "Conduct Regs" verses those needed for IR35.

That is a different topic as to the other two threads.

The reason I created another thread for the first topic, is that any reader would have to read through a significant amount of material, much of it incorrect and misleading before they hit the salient points.

[malvolio]

This thread is dealing with the level of direction and control needed for the "Conduct Regs" verses those needed for IR35.

That is a different topic as to the other two threads.

The reason I created another thread for the first topic, is that any reader would have to read through a significant amount of material, much of it incorrect and misleading before they hit the salient points.

At last, a coherent statement...

So let me summarise my understanding of your position:

If a contractor wants to have the protection of the Agency Conduct Regulations he must cede control of his work to his client who may the agency or more likely may be the hiring organisation but only if the agency is acting as an Employment Agency rather than as an Employment Business in the context of the applicable case law regardless of whether or not the Agency declares themselves to be an Employment Agency or an Employment Business contractually while the level of control ceded is not sufficient to demonstrate the level of control required to settle an IR35 case one way or the other but is a lesser level of control than that needed for Employment to be demonstrated but if the agency is acting as an Employment Agency whether they say they are or not then the protections in the Agency Regulations cannot apply because predominant control has passed to the hirer and therefore there is no point in opting in, not that you can actually opt in, or opting out since neither will have any effect, whereas if you deal though a genuine Employment Business, and correctly opt out of the Agency Regs there is no issue and still no relevance to your IR35 status since different measures of control will apply except that none of this will be made clear to the contractor since the agency almost certainly won't understand it themselves and will represent themselves as an Employment Business anyway and request that you opt out since it saves them considerable time and money.

How am I doing?.