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

[craig1]

Shall I tell District Judge Workmen he was wrong or do you want to ? Shall I give you the number of the BIS barrister and tell them they were wrong not to appeal on a point of law ?

A district judge has about as much precedent making authority as a lay magistrate in real terms.

Also, this is a first year law degree concept, if a case is about subject x (say the civil Accenture case on VAT) and another case is about subject y (say your criminal case centring around the Conduct Regs) then a judge DOES NOT have to abide by the decision of that superior court in subject x. For him to have done so was a way of deciding in your favour, probably because he thought the contractor was a bit of a chancer first freely opting out then trying to stop himself being stuck with a massive financial penalty by saying the opt out was invalid.

You could have a re-run of your case with a contractor who is all sweetness and light, misled into opting out and then relying on the regulations to stop himself going bankrupt (cue violins in the background), the judge might then pull out another case on, say, pure contract law citing that a material provision of the contract, i.e. that you stated you were an employment business, was so important that it automatically invalidated the contract when you swore to the court you weren't, putting you firmly and squarely within the sights of the Conduct Regs. The contractor sues for his £15,000 in overdue day rates and you don't get the £39,600 for allowing him to go direct.

The lowest end criminal courts are all about facts and manipulating the laws to fit the facts of the case rather than fitting the case to the law of the land. I could probably find a cohesive and valid argument for almost any case using valid precedents from superior courts (Court of Appeal and the Supreme Court or its predecessor the House of Lords)

[tractor]

A district judge has about as much precedent making authority as a lay magistrate in real terms.

Also, this is a first year law degree concept, if a case is about subject x (say the civil Accenture case on VAT) and another case is about subject y (say your criminal case centring around the Conduct Regs) then a judge DOES NOT have to abide by the decision of that superior court in subject x. For him to have done so was a way of deciding in your favour, probably because he thought the contractor was a bit of a chancer first freely opting out then trying to stop himself being stuck with a massive financial penalty by saying the opt out was invalid.

You could have a re-run of your case with a contractor who is all sweetness and light, misled into opting out and then relying on the regulations to stop himself going bankrupt (cue violins in the background), the judge might then pull out another case on, say, pure contract law citing that a material provision of the contract, i.e. that you stated you were an employment business, was so important that it automatically invalidated the contract when you swore to the court you weren't, putting you firmly and squarely within the sights of the Conduct Regs. The contractor sues for his £15,000 in overdue day rates and you don't get the £39,600 for allowing him to go direct.

The lowest end criminal courts are all about facts and manipulating the laws to fit the facts of the case rather than fitting the case to the law of the land. I could probably find a cohesive and valid argument for almost any case using valid precedents from superior courts (Court of Appeal and the Supreme Court or its predecessor the House of Lords)

This is exactly what I took from all this.

[Rory Dwyer]

A district judge has about as much precedent making authority as a lay magistrate in real terms.

Also, this is a first year law degree concept, if a case is about subject x (say the civil Accenture case on VAT) and another case is about subject y (say your criminal case centring around the Conduct Regs) then a judge DOES NOT have to abide by the decision of that superior court in subject x. For him to have done so was a way of deciding in your favour, probably because he thought the contractor was a bit of a chancer first freely opting out then trying to stop himself being stuck with a massive financial penalty by saying the opt out was invalid.

You could have a re-run of your case with a contractor who is all sweetness and light, misled into opting out and then relying on the regulations to stop himself going bankrupt (cue violins in the background), the judge might then pull out another case on, say, pure contract law citing that a material provision of the contract, i.e. that you stated you were an employment business, was so important that it automatically invalidated the contract when you swore to the court you weren't, putting you firmly and squarely within the sights of the Conduct Regs. The contractor sues for his £15,000 in overdue day rates and you don't get the £39,600 for allowing him to go direct.

The lowest end criminal courts are all about facts and manipulating the laws to fit the facts of the case rather than fitting the case to the law of the land. I could probably find a cohesive and valid argument for almost any case using valid precedents from superior courts (Court of Appeal and the Supreme Court or its predecessor the House of Lords)

If a judge in any lower court contradicts the ruling of Justice Sales the judgement will be open to being overturned on appeal.

If you think you can find a precedent setting case other than the one I have brought your attention to, that directly relates to the conduct regs and the EAA, then why don't you ?

While you are at it, give me one case example of where a Master/Servant relationship existed which wasn't a contract of service.

[Rory Dwyer]

If you were holding onto my £15k and refusing to pay it, I would call that something other than respect.

The dichotomy may not be yours but the way you present it is false.

If you set up a competing business to the company that you were in contract with and then attempted to obtain the proprietary assets of that company, causing significant loss and damage by your actions.

I would see you in court for breach of contract, because you would have disrespected your contracted party and the contract.

If you can't see the wrong in that behaviour, then you don't know the meaning of respect and where respect is warranted it is warranted both ways.

And in any event, as I have previously stated, even if the transaction was one covered by the Conduct Reg, which it wasn't, you wouldn't be protected anyhow.

[Rory Dwyer]

So, you'd be happy for a contractor who owns 100% of their business to remain opted into the regulations? You (and I'm including any employee of CNL or any of their trading names, parent or child firms) would be happy to offer a contract which does not include an opt out clause, but still includes an unfettered right of substitution and a lack of MOO clause?

The ultimate question is - if you found a contract that I was suitable for, and the client wanted me for the role, would you offer a contract which meets those requirements, or would you only do an opt-out contract?

CNL would not enter into a contract which the contractor was under the predominant control of the hirer and the individual who was supplied by that work seeker was the sole director as that contract would in my view be a contract of services and not a contract for service and all of the ancillary legislation that that could invoke against the contractor, the hirer and the intermediary.

[TheFaQQer]

CNL would not enter into a contract which the contractor was under the predominant control of the hirer and the individual who was supplied by that work seeker was the sole director as that contract would in my view be a contract of services and not a contract for service and all of the ancillary legislation that that could invoke against the contractor, the hirer and the intermediary.

Have you considered a career in politics? I asked two yes/no questions and you've responded with 69 words which waffle around the point.

Let's try again - yes or no - if you found a contract that I was suitable for, and the client wanted me for the role, would you offer a contract which includes an unfettered right of substitution, a lack of MOO clause but no opt out, or would you only include those terms in a contract if the contractor and the company opt out of the agency regulations?

[Rory Dwyer]

I think he has learned something.

And hate? Why on earth would anyone hate you?

It is a saying, I.e. If you don't like the rules of the game, don't blame a participant for playing by the rules.

I know that you may not realise this, but I am bringing to your attention the judgements that may affect you in your professional engagements, for your benefit.

I run a certain amount of risk in sharing with you the judgements, but hopefully, you will respect the fact that I am bringing your awareness to the issues as opposed to letting people think they have protection when in reality they do not.

I don't actually think you hate me. At least I hope not, as you don't really know me.

[Rory Dwyer]

Point me towards the trial transcript, I will read the whole thing and then apologise if I was wrong in what I said

Lisa, it would be very a very arrogant position for an individual to take the position that their opinion carries more weight than those of the individuals who have spent a lifetime earning the privilege to hold the positions they hold, having been the presiding judge of this particular case and who was the individual who had to make the decision based on all of the information that was presented to them.

The judges ruling is in the public domain, should you wish to obtain a copy, then do so.

As I have said many times before, I am not trying to convince you of anything. You can choose to believe what you want to believe, many people do, but I respect their right to hold any beliefs even if I do not believe in the same things.

All I am doing is bringing to your attention the relevant rulings, you can draw your own conclusions as have I. I have put my opinions out for all to see and I am still waiting for my logic and position to be challenged with fact and/or case law. Despite this, you can continue to still hold whatever views you so wish and then construct your contracts accordingly to those beliefs, as will I.

[Rory Dwyer]

Have you considered a career in politics? I asked two yes/no questions and you've responded with 69 words which waffle around the point.

Let's try again - yes or no - if you found a contract that I was suitable for, and the client wanted me for the role, would you offer a contract which includes an unfettered right of substitution, a lack of MOO clause but no opt out, or would you only include those terms in a contract if the contractor and the company opt out of the agency regulations?

Have you considered a career with the BIS ? I kept giving them the same answer and they chose not to take it either. More fool them.

Firstly, it would not be my sole decision, any contract alteration would have to go to board approval. Secondly, I would have impressed upon the client, should it be necessary, the potential risks the client faces, I would explain to the contractor the potential risks that they may then face, then I would explain to the board the potential risk that the intermediary faces.

The board would then make their decision as to what they would do.

Yes/no questions might work for issues like pregnancy but complex issues can not be reduced to the same extent.

[Wanderer]

CNL would not enter into a contract which the contractor was under the predominant control of the hirer and the individual who was supplied by that work seeker was the sole director as that contract would in my view be a contract of services and not a contract for service and all of the ancillary legislation that that could invoke against the contractor, the hirer and the intermediary.

Will CNL continue to state in their contracts that they are acting as an employment business or will they now remove this statement?