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

[LisaContractorUmbrella]

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.

HMRC have recently given guidance on the cases that they rely on from the courts to determine SDC:

Ready Mixed Concrete V Minister of Pensions and NI is the leading authority on employment status "...he agrees expressly or impliedly [sic] that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master"

Autoclenz Ltd V Belcher and Others: "They are subject to the direction and control of the respondent's employees on site. The claimants have no say in the terms upon which they perform work, the contracts which are placed before them are devised entirely by the respondent and the services they provide are subject to a detailed specification"

Talentcore v HMRC (although the predominant issue in the case was ROS): The FTT found that whilst there was little of no supervision, direction and control being exercised, IF a manager ....were present they would have had the right to supervise, direct and control the employees in a similar way as they would regular retail staff.

Serpol v HMRC - the tribunal found that a RIGHT of control existed over those persons supplied - clause 3 of the agency contract gave the client the right to ensure that 'the job was completed in accordance with his wishes and in the time stated by him if specified.

To my mind the most relevant of these is Ready Mixed Concrete - although the case took place in 1968 (I think) it is regularly cited as the authority.

[SteelyDan]

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?.

Good points.
Bad punctuation & structure.

[northernladuk]

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.

Oops got your name wrong Rory. Sorry. Being nice to people on here won't change them, just gotta take them head on. They will respect you for it more

[Rory Dwyer]

Oops got your name wrong Rory. Sorry. Being nice to people on here won't change them, just gotta take them head on. They will respect you for it more

No problem, you can call me anything you want, so long as it is not too early in the morning

[Rory Dwyer]

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?.

Not very well, that is not a summary of my position.

[malvolio]

Good points.
Bad punctuation & structure.

Whoosh...

[craig1]

We've seen more than a few examples over the years through these forums where two different courts dealing with the same person will decide for IR35 purposes that the contractor is a "disguised employee" but also "not an employee" for terms of employee protections. If you get caught into the trap of thinking the courts or tax man will be consistent between even closely related subjects then you're quite sadly deluded.

There's no cause or justification for absolute statements on this subject until a court case is held in a CIVIL court and appealed to a precedent making authority level deciding the question on whether the Conduct Regs have even the slightest bearing on control from the purposes of identifying disguised employment from an IR35 perspective. Criminal court decisions are about as worthless as a forum opinion when it comes to setting legal precedent.

[Old Greg]

Not very well, that is not a summary of my position.

What is a summary of your position?

[Goatfell]

What is a summary of your position?

Agent's summary of all threads:
Opt out.

[TheFaQQer]

What is a summary of your position?

Opt out is useless. It's unenforceable.

Therefore, the only sensible position to take is for agencies to encourage clients to only accept contractors who opt out, and for contractors to opt out.