The "Conduct Reg's" are virtually unenforceable against your intermediary

[DirtyDog]

Dear DirtyDog,

Without being facetious , I could declare myself as "the queen of sheba" but unless I satisfy the statutory definition of "the queen of sheba", I am not "the queen of sheba" in the courts eyes

That's worth considering - I certainly will next time I get a call from your lot.

[Rory Dwyer]

So this has been going on a long time? This company was dissolved in 2011 with Mr Butt resigning in 2010.

So the original complain was about contract breach and they have used the this element to try get out of it? I would also like to see the case in detail as from what Rory says the opt in/out case has come off the back of something more telling. The CUK article doesn't really give the whole picture if this is the case.

Dear Northernladuk,

The opt in/opt out issue was a side consideration to the main ruling.

The contractor opted out of the "Conduct Regs" that was provable, the Sales Manager who had set-up the competing business with the contractor was also the individual who would have notified the client. Unfortunately, on the sales managers departure a large portion of the email communications and physical hardcopy documentation disappeared rendering CNL unable to prove that the opt out had been notified to the hirer.

Yes the case had been going on for a number of years and only came before a judge in December 2013

[Rory Dwyer]

That's worth considering - I certainly will next time I get a call from your lot.

Dear Dirtydog,

Your issue is with the legal system, bear in mind that the contractor had opted out and so was fully aware of their position. As stated in the judges summary, so was the hirer.

Additionally, any contract can be altered by the court on the basis of many things including, implied terms, business efficacy, conflict with statute etc.

You are more than welcome to become angry with our company, but would you rather, this information was not shared so that people wrongly thought they were protected when they were in fact not ?

Additionally, as cited by the sitting judge, even though he did not have to decide upon the issue of effective opt in/opt out as he was confident that pre-dominant control had not passed, he clearly indicated that the hirer was fully aware of the opt out and in any event he stated that the Director of CNL would have been found not guilty of all charges even if the preceding position had have been different.

[Rory Dwyer]

Can I assume then that the contractor was particularly daft in signing personal indemnities if there are still civil cases going on? If not, surely the protections of limited liability apply?

Yes, some people are still daft enough to sign personal indemnities...

Dear Craig1,

I can not comment on the civil cases for obvious reasons.

[craig1]

Dear Craig1,

I can not comment on the civil cases for obvious reasons.

Fair enough but, yes then

[DirtyDog]

Dear Dirtydog,

Your issue is with the legal system, bear in mind that the contractor had opted out and so was fully aware of their position. As stated in the judges summary, so was the hirer.

You are more than welcome to become angry with our company, but would you rather, this information was not shared so that people wrongly thought they were protected when they were in fact not ?

No, my issue is with a company where a director basically says "we can put anything we want in a contract, knowing that it's rubbish, and if we go to court, we'll just say 'that doesn't apply'"

Without having access to the full judgement, though, the only things we know about the case are the CUK article and your posts.

To imply that this one case will determine all other cases is ridiculous.

[northernladuk]

I am interested to know what BIS has to say about all this....

[Rory Dwyer]

No, my issue is with a company where a director basically says "we can put anything we want in a contract, knowing that it's rubbish, and if we go to court, we'll just say 'that doesn't apply'"

Without having access to the full judgement, though, the only things we know about the case are the CUK article and your posts.

To imply that this one case will determine all other cases is ridiculous.

Dear Dirtydog,

I am more than happy to address the questions that you raise against my statements, but it would be inappropriate of me to answer statements that I did not make.

In a court of law, the judge is the individual who determines what is enforceable and what is not enforceable based on the respective statutes, precedents and common law.

For the record, a company can in one transaction be an employment business and not in another. It is the definition of what is an employment business as defined by statute supported by the provable facts of the case that determines the judgement by the residing judge.

With regards to this one case deciding all, I have already explained that this judgement was made based on the previous higher court rulings and the sitting judge had no option but to make the ruling in the way he did.

[Rory Dwyer]

I am interested to know what BIS has to say about all this....

Dear Northernladuk.

My research would indicate that there is not much they can actually do about it or would want to. Their primary focus is now on those individuals who earn the minimum wage or there about and who are genuinely vulnerable.

The resources available have been drastically reduced to focus on those most in need. In my opinion, quite rightly so.

Although the statute is currently part of a red tape review and the definition of an Employment Agency has been muted as potentially being re-drafted but ominously enough not that of an Employment Business.

But who knows what the future holds ? Except with the potential exception of the purveyors of the books and Derren Brown.

This particular contractor who purported to be in business on his own account tried to use the BIS as his companies legal department to try to enforce his position.

Ironically, the non-payment of his invoice due to breach of contract would actually be considered a strengthening of his position with regards to IR35.

[cojak]

Dear Cojak,

I am neither taking a moral or ethical stance for any future cases (unless I am involved with it, of course). As it happens, neither do the courts, they are only concerned with the law and that is all I am sharing, having been staring the dragon in the eye, I now know it quite well.

I am sharing the legal difficulty any contractor will face should they try to rely on the "Conduct Regs"

Therefore, one could argue, as I do, that by knowing this, one can construct their contracts without falsely believing they have protection where they do not.

You might even thank me for it one day !

It is certainly is giving us food for thought Rory.