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

[malvolio]

I would like to dislike malvolio, how do I do that ?

I shouldn't bother. I don't care ether way, and I've been giving good advice on here for many years. What you fail to notice is that I'm not necessarily agreeing or disagreeing with you (or anyone else) I'm only trying to make sure the point, and the relevance of the point, is properly explained. Which you have finally managed to achieve.

However that relates to one specific set of circumstances. Where we part company is your assertion that this case extends to all - it may, it may not, but we don't have a lot of examples to work with - and that it has anything to do with IR35.

And you still skirt around my last question; why do agencies insist on an opt out as far as they can, when there is actually no reason on earth why you need to opt out unless you are using subbies. All they appear to be doing is misusing the Regs for their own commercial benefit?

And to be clear - the PCG advice to Opt Out is primarily because you then persuade the agency to offer contractual clauses that will strengthen your IR35 position in exchange for saving the agency some time and effort. A bit chicken and egg, I agree, but you guys started it.

[Rory Dwyer]

I shouldn't bother. I don't care ether way, and I've been giving good advice on here for many years. What you fail to notice is that I'm not necessarily agreeing or disagreeing with you (or anyone else) I'm only trying to make sure the point, and the relevance of the point, is properly explained. Which you have finally managed to achieve.

Rory : Thank You

However that relates to one specific set of circumstances. Where we part company is your assertion that this case extends to all - it may, it may not, but we don't have a lot of examples to work with - and that it has anything to do with IR35.

Rory : "I actually never said that, all I have said is that any lower court than the court that set the precedent will be subject to follow that judgement or risk their judgement being overturned on appeal.

If one argues that they are under the pre-dominant control of another whenever there are only two parties to be in control. There is no getting away from the fact that this makes one a servant and another a master. I can find no case law where this has been the case and that it was not ruled to be a contract of service.

I am happy to be proven wrong, but I have not been able to find one example."

And you still skirt around my last question; why do agencies insist on an opt out as far as they can, when there is actually no reason on earth why you need to opt out unless you are using subbies. All they appear to be doing is misusing the Regs for their own commercial benefit?

Rory : "How can you ask me a question pertaining to agencies ? We are but one who got dragged into this by the unethical and bad faith actions of one contractor who breached his contract ? If you want an answer to that question, go and ask the REC or APSCO. If you want to know just our position, it is as follows;

CNL does not believe that when we are supplying highly skilled workers in business on their own account that they are acting under the control of the hirer and to remove any ambiguity concerning that position the contractor and the hirer are very happy to accept that is a true reflection of the construct of the engagement and sign an opt out.

We were facing criminal convictions, on top of suffering significant losses off the back of this contractors actions when we have always maintained that we did not supply this individual under the control of the hirer to any significant degree.

what would you have done ? accepted the conduct, reward him for it ?"

And to be clear - the PCG advice to Opt Out is primarily because you then persuade the agency to offer contractual clauses that will strengthen your IR35 position in exchange for saving the agency some time and effort. A bit chicken and egg, I agree, but you guys started it.

Rory : "I have no awareness of PCG's position as I have no awareness of REC or APSCO's position. But I would say this, if in the same engagement you wish to argue you are NOT in a MASTER/SERVANT relationship and then have to prove that you are in a MASTER/SERVANT relationship to be "protected" by another piece of legislation, this is nothing more and will never be anything more than a contradiction. "

I actually, don't dislike you, I did that for comic effect based on Northernladuk's advice, he stated that you would respect me more for it. You are actually helping me prepare for my court arguments, I'll let you know how you get on.

[TheFaQQer]

As I have already said, they virtually all opt out and the very few that don't don't own the PSC and therefore IR35 does not matter

Saying that they virtually all opt out is very different from saying that you don't put pressure on contractors to opt out, though, isn't it?

Virtually all the people in Iraq voted for Saddam Hussein, for example, but they may have had some pressure put on them to do so.

As I have already said, you may personally not care whether people opt out or not, but there are certain people who work for you who put that pressure on contractors to opt out.

[Rory Dwyer]

Saying that they virtually all opt out is very different from saying that you don't put pressure on contractors to opt out, though, isn't it?

Virtually all the people in Iraq voted for Saddam Hussein, for example, but they may have had some pressure put on them to do so.

As I have already said, you may personally not care whether people opt out or not, but there are certain people who work for you who put that pressure on contractors to opt out.

Our contracts state that the individual supplied is not under the significant control of the hirer. A position the contractors gladly accept and in fact push for as this is the reality for highly skilled workers. Therefore, we do not need to put pressure on any one.

We would not sign a contract that stated that they were under the significant control or predominant control of a hirer and so your position is a moot point.

[tractor]

Our contracts state that the individual supplied is not under the significant control of the hirer. A position the contractors gladly accept and in fact push for as this is the reality for highly skilled workers. Therefore, we do not need to put pressure on any one.

We would not sign a contract that stated that they were under the significant control or predominant control of a hirer and so your position is a mute point.

Moot

[TheFaQQer]

Therefore, we do not need to put pressure on any one.

I can only write from my personal experience of dealing with your staff at OracleContractors and trying to not opt out.

You might want to make sure that everyone is aware of this policy when they discuss with contractors whether they should opt out or not.

[LisaContractorUmbrella]

I have given you the details of the case where the BIS took CNL to court on the request of a contractor whom had opted out of the "Conduct Regulations" and the hirer was aware of this opt out, but CNL was unable to prove because of activities alleged which it couldn't provide proof of, because the proof was no longer in our possession.

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.

From what you have written, it would seem that the Judge in the case was deliberating whether or not CNL was an employment business. The Accenture case you referred to was a VAT case but it was necessary to determine whether or not Accenture was an employment business when the provided staff to Barclays as defined under the Employment Agencies Act 1973 - " ‘Employment Business’ means the business ..of supplying persons in the employment of the person carrying on the business, to act for, and under the control of, other persons in any capacity.”

Questions arose as to what degree of control would be required to satisfy the definition in section 13(3).

It was argued (and the judge agreed – para 40)
- ‘control’ related to day to day control over the staff in respect of ‘the activity contemplated by the supply agreement’, or ‘the matter in hand’
- ‘control’ must mean less than the full form of control required to establish an employment relationship

It was held:

- ‘the word ‘control’ … is not expressly qualified and there is no reason to give it anything other than its natural meaning … and requires an overall evaluative judgment to be made whether the predominant power of control of what the employee does has been transferred … to ‘other persons’’ (para 41)
- ‘the control’ suggests that merely ‘any significant level of control’ would not be sufficient (para 43)
- ‘where control is divided between different persons, the natural meaning of ‘the control’ is the predominant practical control over what the person does’ (para 43)

So, essentially, what this would seem to mean is that it's not a question of whether or not a contractor outside IR35 would not have any rights under the Conduct Regs but rather whether or not an agency that has no control over that contractor would be considered an Employment Business according the the Employment Agencies Act and therefore the Conduct Regs.

[tractor]

From what you have written, it would seem that the Judge in the case was deliberating whether or not CNL was an employment business. The Accenture case you referred to was a VAT case but it was necessary to determine whether or not Accenture was an employment business when the provided staff to Barclays as defined under the Employment Agencies Act 1973 - " ‘Employment Business’ means the business ..of supplying persons in the employment of the person carrying on the business, to act for, and under the control of, other persons in any capacity.”

Questions arose as to what degree of control would be required to satisfy the definition in section 13(3).

It was argued (and the judge agreed – para 40)
- ‘control’ related to day to day control over the staff in respect of ‘the activity contemplated by the supply agreement’, or ‘the matter in hand’
- ‘control’ must mean less than the full form of control required to establish an employment relationship

It was held:

- ‘the word ‘control’ … is not expressly qualified and there is no reason to give it anything other than its natural meaning … and requires an overall evaluative judgment to be made whether the predominant power of control of what the employee does has been transferred … to ‘other persons’’ (para 41)
- ‘the control’ suggests that merely ‘any significant level of control’ would not be sufficient (para 43)
- ‘where control is divided between different persons, the natural meaning of ‘the control’ is the predominant practical control over what the person does’ (para 43)

So, essentially, what this would seem to mean is that it's not a question of whether or not a contractor outside IR35 would not have any rights under the Conduct Regs but rather whether or not an agency that has no control over that contractor would be considered an Employment Business according the the Employment Agencies Act and therefore the Conduct Regs.

Exactly, now cutting through all the misinformation in this and other threads, it seems to me that the contractor tried to rely upon the Conduct Regs for protection even though they could never have done so. This forced the agent to deny they were an employment business in respect of this individual contract. This is plainly wrong because you cannot be in or out from an agent's perspective. The agent was always going to be pushing at an open door and the contractor (and the stupid BIS) was wrong to ever think that they could rely upon the protection of legislation when they had already agreed that it did not apply.

So the whole issue has no bearing on either the Conduct Regs or indeed, IR35. The court in this instance simply rubber stamped the agreement that was already in force.

The fact that the agent did all that legal research on case law etc and had never heard of RMC is quite telling

[Old Greg]

I can only write from my personal experience of dealing with your staff at OracleContractors and trying to not opt out.

You might want to make sure that everyone is aware of this policy when they discuss with contractors whether they should opt out or not.

Tell us more. How does the conversation go?

[tractor]

..

Tell us more. How does the conversation go?

And please give us any 'company policy' quotes