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conduct regs - very likely already done..

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    conduct regs - very likely already done..

    ... but i wanted to ask about a specific thing instead of hunting through 30 page threads :s

    I'm reading the conduct regs legislation and it seems to talk about employment all the time:

    “work-finding services” means services (whether by the provision of information or otherwise) provided—
    (a) by an agency to a person for the purpose of finding that person employment or seeking to find that person employment;
    (b) by an employment business to an employee of the employment business for the purpose of finding or seeking to find another person, with a view to the employee acting for and under the control of that other person;
    (c) by an employment business to a person (the“first person”)for the purpose of finding or seeking to find another person (the “second person”), with a view to the first person becoming employed by the employment business and acting for and under the control of the second person;
    “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.
    And I'm assuming that this is where the idea that 'opting in' means that you;re controlled comes from.

    My question is that as there is clearly no intention of ever establishing a contract of employment between anyone, at any time, in the context of us 'PSCs' looking for contracts - then is it just that the term 'employment', in this context, is overloaded? And doesn't actually necessarily refer to employment insofar as a typical employer/employee relationship is concerned?

    #2
    The conduct regulations are badly written.

    It's best to read the guides given by the likes of IPSE and Egos to try and understand their intention.

    It also does not help there are no cases that have gone to the higher courts using the specific legislation which would help clarify their intention.

    You cannot opt-out if the end-client has to do background checks due to working with people who are vulnerable. So say you work with children and the agency says you have opted-out, legally that is null and void.

    There is also no legal definition of a PSC. The government has tried but the fact that the nature of businesses mean their sizes change over their lifetime means you cannot define any business as a PSC. So while it may start of employing just it's own it can end up employing others then fall back to just employing it's owner.

    Finally the best thing to do is ensure your contracts are written as proper business to business contracts. The opt-out then becomes irrelevant.
    "You’re just a bad memory who doesn’t know when to go away" JR

    Comment


      #3
      Originally posted by SueEllen View Post
      Finally the best thing to do is ensure your contracts are written as proper business to business contracts. The opt-out then becomes irrelevant.
      Sure. I'm not particularly bothered either way, especially as 'd be more worried about the agency folding than the client not paying.

      It's more of a curiosity sparked by the assertion that not opting out means I'm 'controlled'.

      Technically then, as no one asked me if I wanted to opt out until the client saw my CV, interviewed me, and then made me an offer - I am 'controlled'.

      The whole thing is such an absurd mess.

      Comment


        #4
        You are quite right.

        Conduct of employment regulations: a guide to opting in or out

        although employment status is determined on a case-by-case basis, a limited company contractor accepting on paper that they are controlled by the client and wish to be covered by the regulations is sending a pretty negative message to HMRC about their employment status. Control by the client is a key factor in determining the employment status of a contractor, and can be part of a package of evidence that puts a contractor inside IR35.
        I'm alright Jack

        Comment


          #5
          Originally posted by BlasterBates View Post
          You are quite right.

          Conduct of employment regulations: a guide to opting in or out
          although employment status is determined on a case-by-case basis, a limited company contractor accepting on paper that they are controlled by the client and wish to be covered by the regulations is sending a pretty negative message to HMRC about their employment status. Control by the client is a key factor in determining the employment status of a contractor, and can be part of a package of evidence that puts a contractor inside IR35.
          Says who? Everything Ive ever read, including stuff posted here, says opting in isnt a pointer to being IR35 caught. Yet that suppose para suggests very strongly that you would be.
          I couldn't give two fornicators! Yes, really!

          Comment


            #6
            ...

            Originally posted by SpontaneousOrder View Post
            ... but i wanted to ask about a specific thing instead of hunting through 30 page threads :s

            I'm reading the conduct regs legislation and it seems to talk about employment all the time:



            And I'm assuming that this is where the idea that 'opting in' means that you;re controlled comes from.

            My question is that as there is clearly no intention of ever establishing a contract of employment between anyone, at any time, in the context of us 'PSCs' looking for contracts - then is it just that the term 'employment', in this context, is overloaded? And doesn't actually necessarily refer to employment insofar as a typical employer/employee relationship is concerned?
            When making assumptions such as this you have to bear the following facts in mind...
            • Very few agents even understand the regulations but simply blindly follow the advice given by their lawyers often leading to bigger misunderstandings and the fact that most of the Opt Outs in place are arguably non compliant. This means that many who think (and wish to be) they are opted out, may in fact not be!
            • The point of 'introduction to the client' has many interpretations and has not yet been tested at court so there is no precedent and your legal advice will vary in both it's accuracy and value.
            • Just because you fail one pillar (assuming that control is established), does not mean you have to forego the other two. Yes, the bigger picture is taken into account but that's more about risk.
            • AFAIK, there is no case law relating to the opt out or lack of in relation to Limited Companies so any advice you read on the net that does not recognise the points above are actually worthless.
            HTH
            Last edited by tractor; 26 July 2015, 13:13.

            Comment


              #7
              Originally posted by BolshieBastard View Post
              Says who? Everything Ive ever read, including stuff posted here, says opting in isnt a pointer to being IR35 caught. Yet that suppose para suggests very strongly that you would be.
              I would simply advise reading the regulations.

              It is clearly targeted to protect temporary employees. That's not to say that you are inside IR35, but if you insist to an agency that you're opted in, it does send a strong message that you consider yourself to be in employment.
              I'm alright Jack

              Comment


                #8
                Originally posted by BlasterBates View Post
                I would simply advise reading the regulations.

                It is clearly targeted to protect temporary employees. That's not to say that you are inside IR35, but if you insist to an agency that you're opted in, it does send a strong message that you consider yourself to be in employment.
                Sorry that argument is non-sequitur balderdash FUD.

                1) Refusing to opt-out does not imply an acceptance that the regulations applied in the first place.

                2) If you believe the regs imply 'control' wrt your IR35 position, opting-out does not negate that 'control'.

                3) If you believe the regs imply 'control' wrt your IR35 position, see 1).
                Last edited by Contreras; 26 July 2015, 14:49.

                Comment


                  #9
                  Originally posted by BlasterBates View Post
                  I would simply advise reading the regulations.

                  It is clearly targeted to protect temporary employees. That's not to say that you are inside IR35, but if you insist to an agency that you're opted in, it does send a strong message that you consider yourself to be in employment.
                  As the regulations have not been tested in a higher court no one can state who their intended targets are. You can think it applies to one category of person but I know from other laws what is likely to happen the people with money/backing to get it to court won't be in that category.

                  Therefore get your contracts written as business to business ones and ignore the opt-out.

                  Funny thing is a few of the agents I have who have had to do any sort of background checks don't bother with the opt-out, there as others have gone mad over it even when it clearly doesn't apply.
                  "You’re just a bad memory who doesn’t know when to go away" JR

                  Comment

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