Dragonfly

[The Lone Gunman]

This cant be good

http://www.contractoruk.com/news/003948.html

It seems to me that this result takes away a lot of our defences.

It also seems a bit perverse to me: The original tests were defined as a test of being in business like a builder or a plumber or any other "real" business you care to name. With this judgement the tests seem to have become relevant in isolation.
i.e. Dragonfly was subject to daily control. So is my builder. He turns up and we discuss the jobs that need doing. If I don't like what he has already done I ask him to redo it.
Dragonfly had a substitution clause but it was fettered and therefore didn't count. My builder has to agree any sub he sends, I will not let just anyone on site and I check the quals and experience even of his navvies.
Dragonfly provided his own equipment and not just the usual tools anyone would likely have. This was regarded as not significant. I wonder how many AA staff have to provide PCs and ethernet out of their own pocket.

This sounds very dire to me and once again sets me off wondering how to get out of the contracting game and IT.

[DimPrawn]

This cant be good

http://www.contractoruk.com/news/003948.html

It seems to me that this result takes away a lot of our defences.

It also seems a bit perverse to me: The original tests were defined as a test of being in business like a builder or a plumber or any other "real" business you care to name. With this judgement the tests seem to have become relevant in isolation.
i.e. Dragonfly was subject to daily control. So is my builder. He turns up and we discuss the jobs that need doing. If I don't like what he has already done I ask him to redo it.
Dragonfly had a substitution clause but it was fettered and therefore didn't count. My builder has to agree any sub he sends, I will not let just anyone on site and I check the quals and experience even of his navvies.
Dragonfly provided his own equipment and not just the usual tools anyone would likely have. This was regarded as not significant. I wonder how many AA staff have to provide PCs and ethernet out of their own pocket.

This sounds very dire to me and once again sets me off wondering how to get out of the contracting game and IT.

Agree with what you are saying there LG. Seems to me now that if a client specifies, test, checks or even looks at anything you do as part of your work at the client, it is deemed direction and control. Ridiculous.

What with recession, offshoring, overseas workers and IR35, I really do think IT is in terminal decline in the UK.

Thank god for plan b's!

[The Lone Gunman]

Thank god for plan b's!

Wish I had one :-(

[Diver]

It would appear that Mr Bessel allowed himself to be tied in by contract to AA rather than Dragonfly as a whole. He allowed Client control of his duties and attendance, Close supervision and control of his working procedures, including spot testing and overseeing of his work,
A contracting company by definition is engaged to supply a service. a service with an end product. Substitution of labour is and always has been the prerogative of the company, not the client. The client may vet the substitute as for ability/qualification to supply the required service or product; and for security reasons, The client does not have the right to specify precisely who carries out those duties. Once the client is given that right, or gains it by default. the company becomes an employee. The client gains power to determine employment and thus becomes an employer not a client.

eg. Dragonfly could not sack Mr Bessel from his position at AA because AA through the contract had full control of Mr Bessel's employment/positioning. Had dragonfly dismissed Mr Bessel, The term of employment and the contract at AA would have ended for Dragonfly as well as Mr Bessel.

The fact that The company supplied Mr Bessel with his tools rather than AA is irrelevant.

[Lockhouse]

Put the bullet in and spin the barrel. IT contracting in the UK today.

[DimPrawn]

Still it's only a £99,000 tax bill. Wouldn't cause a problem to anyone here, what with all the huge wealth we have amassed under Labour.

[BoredBloke]

It would appear that Mr Bessel allowed himself to be tied in by contract to AA rather than Dragonfly as a whole. He allowed Client control of his duties and attendance, Close supervision and control of his working procedures, including spot testing and overseeing of his work,
A contracting company by definition is engaged to supply a service. a service with an end product. Substitution of labour is and always has been the prerogative of the company, not the client. The client may vet the substitute as for ability/qualification to supply the required service or product; and for security reasons, The client does not have the right to specify precisely who carries out those duties. Once the client is given that right, or gains it by default. the company becomes an employee. The client gains power to determine employment and thus becomes an employer not a client.

eg. Dragonfly could not sack Mr Bessel from his position at AA because AA through the contract had full control of Mr Bessel's employment/positioning. Had dragonfly dismissed Mr Bessel, The term of employment and the contract at AA would have ended for Dragonfly as well as Mr Bessel.

The fact that The company supplied Mr Bessel with his tools rather than AA is irrelevant.

When we had a builder in last year he said the weeks he would be available to do the work, in the same way that I agree to a start date and and end date. I was able to check and inspect his work. While I didn't tell him how to do the job I was able to tell him to fix areas which I didn't think were up to scratch. Like my role here, they tell me what they want - they don't tell me how to do it, but they will check to see that I have got the right result.

[Diver]

When we had a builder in last year he said the weeks he would be available to do the work, in the same way that I agree to a start date and and end date. I was able to check and inspect his work. While I didn't tell him how to do the job I was able to tell him to fix areas which I didn't think were up to scratch. Like my role here, they tell me what they want - they don't tell me how to do it, but they will check to see that I have got the right result.

• Did you insist that only he personally carry out all works?
  
• Would you have kicked the company off the job if he had sent somebody equally competent to carry on the work?

[BoredBloke]

I insisted that his company carried out the work. If he wants to take somebody on to do the job then fine - while I agree that is not what happens here, my point was about the checking and direction. I would check the standard of their work as I would expect any customer to do.

[Diver]

I insisted that his company carried out the work. If he wants to take somebody on to do the job then fine - while I agree that is not what happens here, my point was about the checking and direction. I would check the standard of their work as I would expect any customer to do.

Bessell would be subject to the AA’s “direct supervision and control.”

Testimonials came from AA staff: as “part of his management checks,” a Mr Alan Palmer could get Bessell to “run a specific test” to check his work was “acceptable”. A project contractor confirmed she could “spot-check” Bessell’s work.

The SC added that any “possible doubt” that the employment characteristic of control was present was “removed” by the second schedule in the series, which was headed:

“This Schedule sets out the principal terms upon which we shall engage you to provide a consultant to perform certain services for the Client under the Client's direction.”

Basically: You can take on a contractor to carry out certain tasks or to provide an end product.

You can tell your plasterer what you want plastered, you can tell him to what standard you want it plastered, you can agree with him (mutually) when it will be plastered, you can check his work is to the standard required.

Once you supervise his ongoing work and start controlling the way he mixes the plaster and uses his trowel & float, he becomes an employee.