Reply to: Complicated Non Payment Issue

[Mailman]

I agree that you are covered by the regs. But you misunderstood my point.

The OP is not covered by the incorporation part.

Therefore he does not have the choice whether to opt in or out.

Therefore your "are you opted in or out question" which I complained about in the first place was irrelevent.

tim

He is covered because he is a work seeker.

Regards

Mailman

[Mailman]

So Mailman, what you're saying is that you've been in the same position as gtullett where the agent wouldn't pay up and you'd been using an umbrella company? Rode the train and got the tee-shirt?

Did it go to court, or did the agent realise his cause was lost before hand?

They caved in before it got to court. They even threatened to take me to the high court for breach of contract because supposedly their business relied on contracts like the one I broke (according to them). In the court documents I made sure my lawyers included a clause that the agents could not take any further action against me in relation to any matter pertaining to the contract in question...which in one foul swoop stopped their high court action threats

I called their bluff and they fessed up they were in the wrong and paid out everything plus my solicitors costs (which in themselves amounted to a couple thousand pounds!)

Oh the stories I could tell about the level they were prepared to lie to avoid paying me out!

Mailman

[tim123]

If you are a work seeker (be you private individual or incorporated company)then you are covered by the regulations.

Mailman

I agree that you are covered by the regs. But you misunderstood my point.

The OP is not covered by the incorporation part.

Therefore he does not have the choice whether to opt in or out.

Therefore your "are you opted in or out question" which I complained about in the first place was irrelevent.

tim

[insight14]

So Mailman, what you're saying is that you've been in the same position as gtullett where the agent wouldn't pay up and you'd been using an umbrella company? Rode the train and got the tee-shirt?

Did it go to court, or did the agent realise his cause was lost before hand?

[Mailman]

Still don't see how you can make the incorporation part of the regs apply to an individual who is found work, before he has started the relationship with the billing company.

Because on the 6th of July the regulations came in to force for companies and are retrospective (in that they cover business arrangements prior to 6 July). The only way out would be to sign a declaration stating you are withdrawing from the regulations.

If you are a work seeker (be you private individual or incorporated company)then you are covered by the regulations.

I actually had this one tried on me by the dodgy f*ckers who tried to do me out of several thousand pounds. They tried to say my law suite should have been against my management company however when I pointed out the relationship created in the contract between me and the management company was one purely as a paymaster they quickly changed tac.

Regards

Mailman

[insight14]

Actually, it says this in the guidance (which have no legal force), it doesn't say it in the regs.

Good point Tim - you're obviously a lot closer to the way English law works than I (a mere contractor) am. I would have thought though, that the "spirit" of the law would count for a lot if it ever went to court(?)

If the IR write up a "Guidance On..." the regulations, surely they are telling us what they had intented when writing up the law?

[tim123]

Not sure how you think para 1 helps.

Para 2 is accepted. It is the one in the regs that does NOT say "umbrella".

You have snipped the important bit of para 3. If says "for a company...". I.e a work seeker who is a company can be connected to another company.

But we aren't starting from the point of a work seeker who is a company. We are starting with a work seeker who is an individual. So this is irrelevent.

Still don't see how you can make the incorporation part of the regs apply to an individual who is found work, before he has started the relationship with the billing company.

tim

[Mailman]

"company" includes any body corporate (whether incorporated in Great Britain or elsewhere) and references to directors and other officers of a company and to voting power at any general meeting of a company have effect in the case of a company incorporated outside Great Britain with any necessary modifications

"work-seeker" means a person to whom an agency or employment business provides or holds itself out as being capable of providing work-finding services.

(ii) any subsidiary or holding company, both as defined in section 736 of the Companies Act 1985[6], of that company and any person who is a director or other officer, or an employee of any such subsidiary or holding company

These cover the lack of the wording of umbrella companies being specifically mentioned in the regulations.

For a look at the regs, go here:
http://www.opsi.gov.uk/si/si2003/20033319.htm#1

Mailman

[tim123]

I think it does actually Tim. Definition from the Regs:

Term: Work-seeker
...includes not only work-seekers but also limited company contractors (including composite and umbrella companies)...

Actually, it says this in the guidance (which have no legal force), it doesn't say it in the regs.

Under normal circumstances I can't see how the regs can apply (without some re-writting) to someone working through an umbrella company because the opt out must be negotiated before being placed in the job. As most people who use an umbrella simply pick one when they have secured the job this can't have happened.

It will take a test case to prove that umbrellas choosen after placement are caught and on the reading of the actual legislation I don't think that anyone has a hope of showing that they are. If it IS what the DTI intended, rather than an afterthought, they should have written it to say so.

tim

[Mailman]

I believe G that any legal action you take, if you are opted in, should be against the agents.

IF you are opted in then it does not matter to you whether the agents have been paid or not. The fact is they have to pay you regardless of whether they have been paid or not. The brolly people are merely your pay masters...nothing more, nothing less.

If you have opted out...then this is a whole other can of worms and once again Id suggest you get legal advice ASAP.

Mailman

[insight14]

He's working through a umbrella, opting in/out doesn't apply.

I think it does actually Tim. Definition from the Regs:

Term: Work-seeker
...includes not only work-seekers but also limited company contractors (including composite and umbrella companies)...

So I suppose strictly speaking the umbrella company is opted-out or opted-in with the agent.

[Mailman]

Does that make him an employee then?

Either way I wouldnt **** about...go get proper legal advice and get the ball rolling.

Mailman

[tim123]

Mailman change the record please

He's working through a umbrella, opting in/out doesn't apply.

tim

[Mailman]

Are you opted in our out?

Mailman

[gtullett]

No way i am giving up on this its the principal of the thing apart from the money.

Trying to hold out on the legal aspect as i would have to take action against the agency rather than the client, and strictly speaking its not there fault, so i dont want to p*ss them off at this stage, its all a bit of a balancing act.

If the client carries on flatly refusing then i guess i will have to make a formal demand to the agency.