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

[Rory Dwyer]

I say it does, and by making a declaration of opting into the "Conduct Regs" you are as a consequence declaring that you have handed over predominant control of yourself and your PSC to your hirer.

[ASB]

Yes it does. Within the context of the regulations it is judged. I hmrc view the employment status and manuals; and at tribunal the case law that has evolved in that area.

in terms of the conduct regs then yes an opt in does suggest that contrll has been handed over, but that is control judged by a different set of criteria.

Indeed one could bring in another set of control test. That being those that an eat would apply. Different yet again.

There are huge inconsistencies across definitions and tests in all our aspects of employment related law.

Clearly being opted in is not enough to conclude its of service. Otherwise there would have been rather different ir35 results.

[cojak]

Since I always opt out this makes no odds to me (I always contract on deliverables).

[bartman]

opting into the "Conduct Regs"

Is there even such a thing as opting in? In my view it's a matter of choosing to either opt out or not to opt out. Not opting out means doing absolutely nothing at all.

I think that if agencies want to remove the hassle of having to follow their rules, then they should be straight up about it and offer a contractor an incentive to opt out. That might work. Whatever the contractor chooses, I can't see opting out has any relevance to the nature of the engagement with the end client.

[Rory Dwyer]

Is there even such a thing as opting in? In my view it's a matter of choosing to either opt out or not to opt out. Not opting out means doing absolutely nothing at all.

I think that if agencies want to remove the hassle of having to follow their rules, then they should be straight up about it and offer a contractor an incentive to opt out. That might work. Whatever the contractor chooses, I can't see opting out has any relevance to the nature of the engagement with the end client.

Dear Bartman,

I personally wouldn't get too concerned with the semantics. When we provide contracts, we have one set that states that the contract is governed by the Conduct Regs, another set that states it doesn't and in the Accenture Services vs HMRC, I believe the contracts were silent on the issue.

Re the tests of control, in my humble opinion, I can not see how the statute that governs EB and EA who provide individuals under the control of the hirer can not use the tests of control for employment as their basis.

I can understand that based on what control is exerted along with other factors will determine whether the engagement is one of for service as opposed to of service.

[Rory Dwyer]

Yes it does. Within the context of the regulations it is judged. I hmrc view the employment status and manuals; and at tribunal the case law that has evolved in that area.

in terms of the conduct regs then yes an opt in does suggest that contrll has been handed over, but that is control judged by a different set of criteria.

Indeed one could bring in another set of control test. That being those that an eat would apply. Different yet again.

There are huge inconsistencies across definitions and tests in all our aspects of employment related law.

Clearly being opted in is not enough to conclude its of service. Otherwise there would have been rather different ir35 results.

Dear ASB,

The red tape review, has proposed to bring the Conduct Regs under the same management as the employment tribunals and away from the criminal code. I agree that there is ambiguity in all of these areas that create misunderstanding and confusion, again, why the legislation is going through the red tape review.

I agree with you that there are huge inconsistencies across definitions and test in all our aspects of employment law but unfortunately, that is the world we live in.

I guess all I am saying is that to accept pre dominant control, says a lot about the engagement.

pre dominant : present as the strongest or main element.

It can only be one either the hirer or the workseeker vis a vie the contractor.

That is pretty clear to me of reflecting a master/servant relationship, regardless of the additional factors.

Maybe the HMRC BET tests should have a question ?

Have you opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003

Answer Yes : 0 Points
Answer No : Minus 50 points

[tractor]

..

Dear Bartman,

I personally wouldn't get too concerned with the semantics. When we provide contracts, we have one set that states that the contract is governed by the Conduct Regs, another set that states it doesn't and in the Accenture Services vs HMRC, I believe the contracts were silent on the issue.

Re the tests of control, in my humble opinion, I can not see how the statute that governs EB and EA who provide individuals under the control of the hirer can not use the tests of control for employment as their basis.

I can understand that based on what control is exerted along with other factors will determine whether the engagement is one of for service as opposed to of service.

I made the point in your other thread just now and here we are again. Control is different contractually, legally and wrt to different regulations. Control is NOT the same as direction and control within the meaning of employment status as applied by HMRC within the IR35 regs.

[malvolio]

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.

[tractor]

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.

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.

[ASB]

Even if one takes the view - and I am hugely sceptical - that dominant control = direction and control then so what?

It would only be relevant if one was claiming to be outside ir35 and one was solely relying on that tenet.

given the amouht of opinion that has been sought on the regs, and the advice given re opt in/out, it seems highky unlikey that opting in would endanger ir35 status in any way.