Originally posted by craig1
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Does control influence whether an engagement is one of for service or of service ?
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Originally posted by Rory Dwyer View PostI am not anxious for any one to opt out.Comment
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Originally posted by Ticktock View PostWell that won't lead to confusion at all... If the answer is "Not opting out means you are IR35 caught" then there is still the question over whether the Conduct Regs should apply at all in a B2B relationship, or in the particular circumstances of each contract. Of course, these would be glossed over and instead the message would be "You must always Opt Out."Comment
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Originally posted by TheFaQQer View PostYou personally may not be, but there are certainly people who are employed by you who are.Comment
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Originally posted by malvolio View PostNo idea. But I've heard from BIS, three separate IR35 accountants, the PCG and REC that the Agency Regs have absolutely no bearing at all on any IR35 decisions. Clearly we're all missing something...Comment
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Originally posted by Old Greg View PostI'm missing something and TBH there's far too much to bother reading.
But I'm not sure why you would need to test something in the courts which you appear to claim is 100% settled. Anyway, Rory Dwyer is a name on my 'not to do business with' list. Seems like too much hard work.
The law affects all transactions, regardless of your intermediary.Comment
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Originally posted by Rory Dwyer View PostThe BIS also told me lots of things that didn't transpire to be true, I can't comment on the others, but yes, I believe you are missing something and I am providing you with the details.
So how about the substantive point; the Regs as originally conceived, would not have impacted us at all; we were effectively out of scope since the provisions wouldn't really apply to us The opt out was negotiated in order to allow existing business models with a dependency on retained sub-contractors to continue, since there was no exploitation risk and the relationships were all B2B (and FTOAD I was party to that discussion at the time). Then the agencies started demanding that contractors opt out, and made it increasingly difficult not to do so, usually by threatening non-IR35 compliant contracts regardless of the reality of the arrangements. Had they kept out of it, the Regs would have worked as a backstop for poor practice, instead of which they are the second biggest headache we face.
Care to explain why?Blog? What blog...?Comment
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Originally posted by malvolio View PostWell you're not, actually, but let's not go there.
So how about the substantive point; the Regs as originally conceived, would not have impacted us at all; we were effectively out of scope since the provisions wouldn't really apply to us The opt out was negotiated in order to allow existing business models with a dependency on retained sub-contractors to continue, since there was no exploitation risk and the relationships were all B2B (and FTOAD I was party to that discussion at the time). Then the agencies started demanding that contractors opt out, and made it increasingly difficult not to do so, usually by threatening non-IR35 compliant contracts regardless of the reality of the arrangements. Had they kept out of it, the Regs would have worked as a backstop for poor practice, instead of which they are the second biggest headache we face.
Care to explain why?
Additionally, the contractor in question had whilst under contract with the intermediary, set up a competing company with a sales manager of that intermediary causing substantial losses and damages in a breach of his contract and the employment contract of the employee.
If you have an issue with that, I suggest your point of address is the contractor not the intermediary.
The BIS decided to proceed with the case and failed to disclose numerous information concerning direction & control and IR35 even when ordered to do so.
The District Judge Workmen had to decide the case based on a Court Of Appeal (Administrative Court) decision regarding the level of control that is required before the Employment Agencies Act 1973 would bite.
The contractor and the hirer failed to adduce any evidence of control of either the work seeker or the individual supplied by the work seeker but adduced evidence that the contracts signed by both the hirer and the contractor specifically excluded any control (Pre dominant or otherwise)
District Judge Workmen had no choice but to rule that the engagement was not one covered by the Employment Agencies Act 1973 based off the precedent of Justice Sales in Accenture Services Ltd vs HMRC 2009 or face two sets of appeal, of which we were more than happy to do. BIS did not appeal.
Therefore, if your engagement does not have the required level of control as defined by the precedent of Justice Sales the Employment Agencies Act 1973 will not apply and as a consequence neither will the "Conduct Regulations"
Is that clear enough for you ?
Therefore, the details I have provided you are the circumstances surrounding the CNL case and the legal cases that had set the precedents.
You can make your own decisions off the back of that, just as I have.
What I can't provide details on, is the civil case that is currently on-going for obvious reasons.
Parliament passes the laws, Judges interpret them, if you don't like that process, act to change it, move or accept it.Last edited by Rory Dwyer; 19 March 2014, 18:34.Comment
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I would like to add a like to lisa, cojak and northernladuk, how do I do that ?Last edited by Rory Dwyer; 19 March 2014, 20:01.Comment
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