Reply to: Conduct Regulations 2003: opt in/opt out?

[BlasterBates]

I'm still a little confused about the aspect of 'control'.

Clearly the client tells me what they want to achieve by them engaging my services. This would mostly be established during an interview which I look at as more of an initial consultancy. They describe their problem and I get a better idea of what they want doing and if I have the skills they are looking for. During the discussion, they gain confidence that you have the skills and can solve their problem, or not, and decide to proceed accordingly.

When you turn up for the first day, they are clearly going to have some kind of control - sit there, talk to that person, do this, do that. They don't have the skills you have, so once you get going on their problem, then you're on your own more.

However, if something happens with the project - eg cancelled, or things dry up so you haven't enough work to keep you busy - then clearly they can simply instruct you to go and stop the contract.

That's lots of 'control' as far as I can see. I don't think they can tell me to do some work that is unrelated to the work they originally engaged me for...is that the sort of 'control' people are talking about here?

I realise that, as an employee (of my own company), I am ultimately under the control of my director (happens to also be me). It seems like any control that concerns the work in the contract is done via the director of my company, rather than the employee, and the director then tells the employee to go home...so there is no direct control.

...or is it that the client tells the agency that they want something to change (the 'control') and they then tell me/director and the director tells me/employee?

It's all a bit convoluted, but it does seem worthwhile getting these different roles clear.

There are quite a lot of contractors who are clearly not in control but try to argue they are. If you are in control then you know it. As a "contractor" I was personally never in control I was told to do things though I had a contract as if I was. I have a small income as a musician and there I really am in control, I decide who the musicians are, I decide what we play, if a musician doesn't turn up I get another one. Basically yes you have to fit in with the customer but you should be controlling the consultancy i.e. telling the customer what people you need to speak to, in the same way when the decorator comes in to your house he tells you how he will work, you just ask him to paint the room. I also used to work for a consultancy and we decided how we did the work, who did it and when we worked on it.

To be honest if you're not sure whether you're in control then probably you aren't. However for tax purposes just make sure you have an IR35 compliant contract and you will probably get the benefit of the doubt.

[northernladuk]

Cancelling the contract isn't really control. That's more about the commercial agreements between you and the client. That said remember your contract is likely to be with an agent so you wouldn't have any contractual relationship with the client. It's more the agent controlling the contract.

Your second example of the client telling you what to do and being able to give you work above and beyond your contract is a good example of control.

The control meaning you attend monthly meetings, you follow their process or fill in their templates isn't really can issue. Nothing wrong with falling in line to follow client process as long as you keep an eye on not becoming part and parcel and attending things you shouldn't really be at. You work for the client so of course there will be some element of 'control' as to how the work is delivered. Just need to be careful with it though.

Nice article describing what it is and how to mitigate it here.

http://www.contractoruk.com/successf...need_know.html

[dwater]

define 'control'

I'm still a little confused about the aspect of 'control'.

Clearly the client tells me what they want to achieve by them engaging my services. This would mostly be established during an interview which I look at as more of an initial consultancy. They describe their problem and I get a better idea of what they want doing and if I have the skills they are looking for. During the discussion, they gain confidence that you have the skills and can solve their problem, or not, and decide to proceed accordingly.

When you turn up for the first day, they are clearly going to have some kind of control - sit there, talk to that person, do this, do that. They don't have the skills you have, so once you get going on their problem, then you're on your own more.

However, if something happens with the project - eg cancelled, or things dry up so you haven't enough work to keep you busy - then clearly they can simply instruct you to go and stop the contract.

That's lots of 'control' as far as I can see. I don't think they can tell me to do some work that is unrelated to the work they originally engaged me for...is that the sort of 'control' people are talking about here?

I realise that, as an employee (of my own company), I am ultimately under the control of my director (happens to also be me). It seems like any control that concerns the work in the contract is done via the director of my company, rather than the employee, and the director then tells the employee to go home...so there is no direct control.

...or is it that the client tells the agency that they want something to change (the 'control') and they then tell me/director and the director tells me/employee?

It's all a bit convoluted, but it does seem worthwhile getting these different roles clear.

[SueEllen]

In more recent years, though, I would imagine?

Yep.

[MrMarkyMark]

Then it's the stupid client's fault for hiring them.

Mind you I've been at places where contractors have been removed for not using their initiative.

Funnily enough at a couple of those places they were also training up junior permies to use their initiative.

In more recent years, though, I would imagine?

[SueEllen]

To be very frank, as you very well know Sue, this is how it was in the early days.
Clients knew they could / can do this as they were working with seasoned contractor professionals.

Obviously, now you see people contracting almost straight out of university, or with very little work experience, this are the ones that require Line Management IMO.

Then it's the stupid client's fault for hiring them.

Mind you I've been at places where contractors have been removed for not using their initiative.

Funnily enough at a couple of those places they were also training up junior permies to use their initiative.

[MrMarkyMark]

Guess you have never been told "Here's what we want get on with it" with the expectation you produce reports, etc as required.

To be very frank, as you very well know Sue, this is how it was in the early days.
Clients knew they could / can do this as they were working with seasoned contractor professionals.

Obviously, now you see people contracting almost straight out of university, or with very little work experience, this are the ones that require Line Management IMO.

[SueEllen]

I have been on the other side of the table a number of time (e.g. representing the end client). Regardless of what contractors think of their own status, hirers invariably think of contractors as temporary staff to be line managed by them, regardless of what any contract says (because hirers, like contractors, tend not to read them).

If that's not what you want then you should call yourself something else than a contractor and approach customers directly, but that is a quite different and more time consuming although potentially more lucrative approach than the easy way out of going through agencies.

Agencies are specialists in selling people services (don't be fooled by titles such "recruitment consultant", "consultant" or even "java consultant" because I, on that other side of the table, has never ever received any sort of consultancy from them; they are sales people, and they are good at selling). Most other people don't have the tenancy to do that job.

Outside of the contractor/contingent labour/labour leasing/temporary worker niche, you are mostly on your own, but many consultancies maintain their own associate networks where you often (although not always) are viewed more of an external specialist. Be prepared to have to help out with tendering and attend sales presentation and "meet the team" meetings though - because they mostly sell a capability and outcomes, not individual heads.

Guess you have never been told "Here's what we want get on with it" with the expectation you produce reports, etc as required.

[MrMarkyMark]

I have been on the other side of the table a number of time (e.g. representing the end client). Regardless of what contractors think of their own status, hirers invariably think of contractors as temporary staff to be line managed by them, regardless of what any contract says (because hirers, like contractors, tend not to read them).

If that's not what you want then you should call yourself something else than a contractor and approach customers directly, but that is a quite different and more time consuming although potentially more lucrative approach than the easy way out of going through agencies.

Agencies are specialists in selling people services (don't be fooled by titles such "recruitment consultant", "consultant" or even "java consultant" because I, on that other side of the table, has never ever received any sort of consultancy from them; they are sales people, and they are good at selling). Most other people don't have the tenancy to do that job.

Outside of the contractor/contingent labour/labour leasing/temporary worker niche, you are mostly on your own, but many consultancies maintain their own associate networks where you often (although not always) are viewed more of an external specialist. Be prepared to have to help out with tendering and attend sales presentation and "meet the team" meetings though - because they mostly sell a capability and outcomes, not individual heads.

Surely it depends what you do, no? I specialise in data warehousing and BI in general and a specific software product. I can't remember when I was last line managed.

I'm very much usually instructing people what to do. Quite often I may not speak to my "Line Manager" for 2-3 months at a time. They do, however, get a weekly report. The only exceptions may be time sheet or extension related.
So either they are excellent managers or I am actually independently working

Secondly, there are excellent agents around, it's just you haven't come across them when you need to hire.
I can think of at least three I know that I would always use. Two of these were protégé of a guy that has been with that agency for 15 years or so.
These 3 know my market and the main players involved, contractors and clients, so are very useful to know.
What I really appreciated was getting CVs on the QT, so saw more than Client Cos outsourced HR knew about.
This let me get the best people available

[m0n1k3r]

Oh, and on that point, I am a 20 year professional contractor and have taken solid legal advice during all that time. I've also been closely involved in the IR35, Agency Regs, ICTs, S660a and a load of other discussions and consultations so I hope I have a reasonable grasp of my business legalities. I've also spent time researching your business models although I am no expert in them - but then again they don't impact me other than the meaningless and unenforceable clauses that your risk averse management insist on loading into their contracts.

If your business would treat me as a professional in my own right and my business as a supplier of services and expertise and not a three-month chunk of general purpose resources, you, me and the end clients would be a hell of a lot better off.

I have been on the other side of the table a number of time (e.g. representing the end client). Regardless of what contractors think of their own status, hirers invariably think of contractors as temporary staff to be line managed by them, regardless of what any contract says (because hirers, like contractors, tend not to read them).

If that's not what you want then you should call yourself something else than a contractor and approach customers directly, but that is a quite different and more time consuming although potentially more lucrative approach than the easy way out of going through agencies.

Agencies are specialists in selling people services (don't be fooled by titles such "recruitment consultant", "consultant" or even "java consultant" because I, on that other side of the table, has never ever received any sort of consultancy from them; they are sales people, and they are good at selling). Most other people don't have the tenancy to do that job.

Outside of the contractor/contingent labour/labour leasing/temporary worker niche, you are mostly on your own, but many consultancies maintain their own associate networks where you often (although not always) are viewed more of an external specialist. Be prepared to have to help out with tendering and attend sales presentation and "meet the team" meetings though - because they mostly sell a capability and outcomes, not individual heads.

[SueEllen]

You don't opt in to anything. It's the default position.

If it doesn't apply if you're not under any control, then why the need to opt out in the first place?

Agents don't like you pointing out logic flaws to them.

[malvolio]

...

Seriously, you gotta stop listening to the drivel posted by some of the members and look at what the professional say, especially those professionals that wrote for this very site.

Oh, and on that point, I am a 20 year professional contractor and have taken solid legal advice during all that time. I've also been closely involved in the IR35, Agency Regs, ICTs, S660a and a load of other discussions and consultations so I hope I have a reasonable grasp of my business legalities. I've also spent time researching your business models although I am no expert in them - but then again they don't impact me other than the meaningless and unenforceable clauses that your risk averse management insist on loading into their contracts.

If your business would treat me as a professional in my own right and my business as a supplier of services and expertise and not a three-month chunk of general purpose resources, you, me and the end clients would be a hell of a lot better off.

[SueEllen]

Seriously, you gotta stop listening to the drivel posted by some of the members and look at what the professional say, especially those professionals that wrote for this very site.

Oddly enough my contracts have been reviewed by some of the legal professionals who write for this site. They say don't bother opting out but we need to sort out these [tulip] clauses in the contract particularly the ones that don't make sense which the agency has put in.

When agents are challenged on the opt-out they come up with IR35 which is irrelevant plus my problem NOT theirs, and that's because what other contractors do.

It's even more amusing when the end client is one where I HAVE to be background checked e.g. if I had a criminal record I wouldn't get the role.

They seem completely unaware that if their contracts with both parties were as well written like several of the consultancies I've worked through, they would be better protected in law.

[dwater]

And this is based on what evidence? ...
Seriously, you gotta stop listening to the drivel posted by some of the members and look at what the professional say, especially those professionals that wrote for this very site.

Any comment on this? :

Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK

[TheCyclingProgrammer]

My point is that you only get the benefits of opt-in if you are under control or your employer. So if you're not under control you don't get the benefits of opting in. You're opting in to something that won't apply, it's pointless.

You don't opt in to anything. It's the default position.

If it doesn't apply if you're not under any control, then why the need to opt out in the first place?