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

[Rory Dwyer]

So, the CNL contract says that you are acting as an "Employment Business" and then you said in court that you weren't - is that right?

Dear Dirty Dog,

No CNL did not have to state either way. The statute defines what an Employment Business is or isn't, the Judge made the determination that CNL wasn't an Employment Business in this particular instance in line with the agreements, statute, precedent etc.

Unfortunately, you seem to be missing the point.

As I have said previously, it is the individual transaction coupled with mixed law and provable facts that can determine a judgement.

And regardless of the judges decision, the contractor in question opted out and the hirer was fully aware that the contractor had opted out, which in the end proved immaterial as the judge decided that the contractor had not given "the predominant control to the hirer"

Does that answer your question ?

If CNL had have been asked, it would have said that it does not provide resources whom 'act "under the control" of any other persons' in accordance with the Employment Agencies Act 1973 and subsequent precedents which determine the level of control necessary. The statute makes a clear use of the definite article with regards to "THE control" so as to determine the pre-dominate position. If CNL would have done so, it would in the opinion of CNL be a significant step in the supply of "disguised employees" and the corresponding Intermediaries legislation.

[DirtyDog]

No CNL did not have to state either way. The statute defines what an Employment Business is or isn't, the Judge made the determination that CNL wasn't an Employment Business in this particular instance in line with the agreements, statute, precedent etc.

So the judge looked at the contract which said that you were acting as an EB and ignored that clause and said you weren't an EB?

So, you'll be removing the clause from your contracts now?

[Rory Dwyer]

So the judge looked at the contract which said that you were acting as an EB and ignored that clause and said you weren't an EB?

So, you'll be removing the clause from your contracts now?

Dear Dirty Dog,

I did not state that there was a clause that said we were not an Employment Business, I said that the Employment Agencies Act 1973 13 (3) defines what an Employment Business is as refined by precedent. That is a very different proposition to what you are alluding to.

I don't know how much clearer I can be.

With regards to any contracts moving forward for CNL, or indeed any other intermediary, is as the post clearly states, that unless the contractor, defacto the work seeker and the hirer seek to establish that pre-dominant control has been passed to the hirer then neither party will be able to rely on the "Conduct Regs" as applicable legislation.

To do so would be very dangerous from an Intermediaries and Controlled Associated Entities standpoint for the contractor/work seeker and the hirer respectively.

[oracleslave]

Dear Dirty Dog,

I did not state that there was a clause that said we were not an Employment Business, I said that the Employment Agencies Act 1973 13 (3) defines what an Employment Business is as refined by precedent. That is a very different proposition to what you are alluding to.

I don't know how much clearer I can be.

With regards to any contracts moving forward for CNL or indeed any other intermediary is as the post clearly states is that unless the contractor, defacto the work seeker and the hirer seek to establish that pre-dominant control has been passed then neither party will be able to rely on the "Conduct Regs" as applicable legislation.

You're deflecting. There is typically a clause in your contract that states you act in an Employment Business capacity. Yes or No? I believe the answer is Yes.

As you have explained, that clause has been rendered redundant. Will you therefore remove it from future contracts? Yes or No?

[Rory Dwyer]

You're deflecting. There is typically a clause in your contract that states you act in an Employment Business capacity. Yes or No? I believe the answer is Yes.

As you have explained, that clause has been rendered redundant. Will you therefore remove it from future contracts? Yes or No?

Dear Oracle Slave,

I am not deflecting, just like I am not hiding behind a moniker.

I have already stated that I could have a clause that said I am the "Queen of Sheba", our contract will always be trumped by statute.

I have not said the clause has been rendered redundant.

I am happy to repeat what I have said, but it is written in black and white in my previous posts.

I understand if you do not like what I am saying, but that is the law. You would be better served to accept that and change you position accordingly, than get annoyed with me as that will not change the reality one hoot.

[psychocandy]

It must have been pretty bad for you to withhold £15k of his invoices (as well as trying to charge the extra £39k).

Come on Rory. So what did he do that meant you found it fair to withold £15K of payment which I assume was for work done?

I appreciate you had other issues which you may or may not felt you were due damages from but this is another issue. You can't penalise someone and withold payment just because you feel you've been wronged.

[DirtyDog]

I did not state that there was a clause that said we were not an Employment Business, I said that the Employment Agencies Act 1973 13 (3) defines what an Employment Business is as refined by precedent. That is a very different proposition to what you are alluding to.

What I'm saying is:

1) there was a clause in the contract which said that CNL was acting as an Employment Business

2) according to the CUK article "So the judge decided that ultimately, “the issue before me” is whether CNL meets the definition of an ‘employment business,’ as defined under the Employment Agencies Act."

3) the judge found that you aren't an Employment Business

Which makes me wonder what other clauses are in the contract which are a sham as well.

Q - when you put the clause in the contract, did you know that it was a lie or not?

Q - doesn't the definition of whether you are an EB or not form a fundamental part of the contract, such that if that clause is shown to be rubbish the whole contract could be void? If so, where does that leave your breach of contract claim?

[craig1]

It's not the law. It's the decision of a single low-ranking judge in a criminal case based on the unique and personal facts of that case. If you restarted the trial today with a completely different random judge then there's a real chance that he'd rule a different way or use another legal point to decide things. Judges at that level can effectively make up their own law because no-one can or will follow it as a precedent.

If you decided to use that judgement as a precedent for dealing with contractors then you may find yourself in a whole heap of bother when a contractor plays fairly and ethically then decides to invoke the Regulations to resolve a dispute.

Please go take proper legal advice on this matter.

[northernladuk]

Come on Rory. So what did he do that meant you found it fair to withold £15K of payment which I assume was for work done?

I appreciate you had other issues which you may or may not felt you were due damages from but this is another issue. You can't penalise someone and withold payment just because you feel you've been wronged.

The contractor was one of circa 20 contractors at this particular client. He along with another and a sales manager of our company, whilst under contract and employed respectively set up a competing company 'SAP Select Ltd' unbeknownst to the Directors of CNL and attempted to acquire the proprietary confidential information of CNL.

This act, regardless of being unethical and immoral, was a clear breach of contract and the monies were withheld for damages, of which they were substantial. That is another issue, which I am not at liberty to discuss due to on-going civil litigation.

[LisaContractorUmbrella]

Dear Oracle Slave,

I am not deflecting, just like I am not hiding behind a moniker.

I have already stated that I could have a clause that said I am the "Queen of Sheba", our contract will always be trumped by statute.

I have not said the clause has been rendered redundant.

I am happy to repeat what I have said, but it is written in black and white in my previous posts.

I understand if you do not like what I am saying, but that is the law. You would be better served to accept that and change you position accordingly, than get annoyed with me as that will not change the reality one hoot.

This judgement may or may not be significant for future cases (I am thinking not from what has been posted here) but, without seeing a transcript of the case we are unable to make an informed decision - do you know whether or not this is available Rory?