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

[tractor]

You are incorrect, we did not deny anything, CNL stated that they are an employment business who is this engagement did not supply an individual who was under the predominant or significant control of the hirer.

The BIS proceeded with the case because CNL could not prove that the opt out notification had been provided to the hirer, because it suited the contractor, the sales manager who could have proved the position and the hirer to allegedly take that stance.

At no point did I say that did not research RMC, I was well aware of RMC. It actually supports my argument, which is where there is a master/servant relationship then the contract has to be one of service.

I will always respect your right to your opinion even if I disagree with it, which I do insofar as it relates to the Conduct Regs and IR35

Did the contract in this instance include an Opt Out declaration? (bear in mind that any agent that I have ever dealt with since the conduct regs came into force has had an opt out and not opted out version of their contract even though they would never offer it up front)

[TheFaQQer]

If you wish to have a contract that declares that the engagement with the hirer is one of predominant control, we would not enter into that contract. Plain and simple.

Then it is your choice whether to accept the contract or find another one where you can safely be working under the predominant control of the hirer.

I'm getting confused now. You said

I am not anxious for any one to opt out. You can choose to do what you want to do

But you are now saying that you wouldn't enter into a contract where the contractor does not opt out of the agency regulations.

Are you saying that your company refuses to do business with contractors who wish to remain opted into the agency regulations?

[LisaContractorUmbrella]

ESM0516

"Right to control what the worker has to do, where it has to be done, when it has to be done, and how it has to be done"

Accenture Services v HMRC

Justice Sales

"The natural meaning of "the control" is the predominant control over what the transferred employee DOES"

"In my view, the words, "the control", in sec 13(3) cannot be reconciled with the idea that any significant level of control is sufficient. The use of the definite article implies that it is some FULL measure of control which is required before the test is satisfied."

But the accepted authority for determination of employment status is Ready Mixed Concrete 1968 - you are quoting from the Employment Status Manual that HMRC use for internal guidance and some of their quotes are, shall we say, selective. If you read the full transcript from the Accenture case, you will see that there is more to it than just the quotes shown Accenture Services Ltd v HM Revenue and Customs & Ors [2009] EWHC 857 (Admin) (28 April 2009)

[Old Greg]

I'm getting confused now. You said

But you are now saying that you wouldn't enter into a contract where the contractor does not opt out of the agency regulations.

Are you saying that your company refuses to do business with contractors who wish to remain opted into the agency regulations?

I wonder if the mods have checked Rory's email address, and if so perhaps they could change his user name to Rory@ etc.

It's struck me that this may be someone who's had a falling out with the real Rory Dwyer, impersonating him to make him look like a twat, which would be rather unfair.

[tractor]

.

I'm getting confused now. You said

But you are now saying that you wouldn't enter into a contract where the contractor does not opt out of the agency regulations.

Are you saying that your company refuses to do business with contractors who wish to remain opted into the agency regulations?

Which as a registered Employment Business is in itself a breach of the regulations.

[Rory Dwyer]

Did the contract in this instance include an Opt Out declaration? (bear in mind that any agent that I have ever dealt with since the conduct regs came into force has had an opt out and not opted out version of their contract even though they would never offer it up front)

I have clearly communicated that the contractor had opted out of the "Conduct Regs"

[Rory Dwyer]

Which as a registered Employment Business is in itself a breach of the regulations.

Please read the regulations before commenting. There is no requirement to state what the status of control is

[Rory Dwyer]

I wonder if the mods have checked Rory's email address, and if so perhaps they could change his user name to Rory@ etc.

It's struck me that this may be someone who's had a falling out with the real Rory Dwyer, impersonating him to make him look like a twat, which would be rather unfair.

I am providing the judgements of Justice Sales and District Judge Workmen. You can choose to ignore them or take them on board. Prior to the thread I started I am pretty sure that you were unaware of both. Given that the precedent in the Justice Sales judgement directly concerns the "Conduct Regs" and the judges interpretation, you can now make future decision in a more informed fashion. Some might even thank me for it!

[Rory Dwyer]

But the accepted authority for determination of employment status is Ready Mixed Concrete 1968 - you are quoting from the Employment Status Manual that HMRC use for internal guidance and some of their quotes are, shall we say, selective. If you read the full transcript from the Accenture case, you will see that there is more to it than just the quotes shown Accenture Services Ltd v HM Revenue and Customs & Ors [2009] EWHC 857 (Admin) (28 April 2009)

I have read the ruling many times, as did the District Judge Workmen. I have also read the RMC ruling many times.

•The worker has to be subject to a right of control. If there is no right of control of any kind then you will not have a contract of service. However, it was also made clear in the judgment that, although a right of control is an important factor in determining employment status, it is not necessarily a determining factor;
•Personal service must be given. However, the court did make the important point that a limited right of delegation was not inconsistent with a contract of service. This has been reaffirmed by later case law (see ESM7220); and
•the other factors present are consistent with a contract of service. Factors such as ownership of significant assets, financial risk and the opportunity to profit are not consistent with a contract of service.

Note he stated "right of control" as opposed to predominant control between two parties. Where there is predominant control between two parties, it has to make one Master and the other Servant.

I have found no case law where there was a case of a Master/Servant relationship which did not mean that it was not a contract of service.

I am open to being proved wrong on that count.

Right of control < exercised control < significant control < predominant control

[Rory Dwyer]

I'm getting confused now. You said

But you are now saying that you wouldn't enter into a contract where the contractor does not opt out of the agency regulations.

Are you saying that your company refuses to do business with contractors who wish to remain opted into the agency regulations?

I did not say that we would not enter into a contract where the contractor does not opt out of the Conduct Regulations at all.

I wouldn't let reality affect your delusions.