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

[Project Monkey]

Best thread in ages, well done guys and thanks to all who've taken the trouble to think this through. Very interesting!

[Rory Dwyer]

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.

Dear Craig1,

unfortunately, you are incorrect. I was sharing this information for contractors benefit.

It is up to you to do with the information what you will.

For your information, when facing criminal charges, we obtained very good legal advice, sufficiently good to win the case and provide the background to the information that I have shared with you.

For your edification there is an article today from Ergos, unfortunately for him, he does not have the benefit of the trial documentation and so he is also incorrect in a number of areas.

Specifically relating to the issue of control and IR35. As I have previously stated, a master of a ship, can have limited control and direction exerted upon him yet still be in a contract of service. So to state that the levels of control are not sufficient for IR35 purposes is misleading at best and incorrect at worst.

[DirtyDog]

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?

Even a court reference would be a start - R v Contractors Network Ltd? R v Jason Howlett?

[craig1]

Dear Craig1,

unfortunately, you are incorrect. I was sharing this information for contractors benefit.

It is up to you to do with the information what you will.

For your information, when facing criminal charges, we obtained very good legal advice, sufficiently good to win the case and provide the background to the information that I have shared with you.

For your edification that is an article today from Ergos, unfortunately for him, he does not have the benefit of the trial documentation and so he is also incorrect in a number of areas.

Specifically relating to the issue of control and IR35. As I have previously stated, a master of a ship, can have limited control and direction exerted upon him yet still be in a contract of service. So to state that the levels of control are not sufficient for IR35 purposes is misleading at best and incorrect at worst.

I clearly can't convince you of the blunt fact that a first tier judge has just slightly more precedent making capacity of a lay magistrate and none at all when dealing with criminal cases. It's something that first year law students get taught, never mind it being complex legal thought. A very quick search of Google gives this document from the ICO, please scroll down to page 7 and "inferior courts". That said, it's your call, it's your money on the line.

On a separate subject, have you had a thought about the ethical questions I raised yet a couple of pages back?

[Rory Dwyer]

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?

Dear Dirty Dog,

Please believe me when I say that I am not meaning to be rude, when I say the following, as I am not.

Your questions belie an understanding of contract law and I don't have the time to bring your required knowledge levels up to the appropriate level to provide useful answers to your questions.

I have no problem if you choose not to believe me, I respect your position to believe anything you want. I have shared the information with the members of this forum so that they can now proceed with a greater level of knowledge and take any action they deem necessary.

The issues I have raised are not a CNL issue but will be applicable to all contracts. It may just remove some of the ambiguity that existed on this forum for many years now.

[Rory Dwyer]

I clearly can't convince you of the blunt fact that a first tier judge has just slightly more precedent making capacity of a lay magistrate and none at all when dealing with criminal cases. It's something that first year law students get taught, never mind it being complex legal thought. A very quick search of Google gives this document from the ICO, please scroll down to page 7 and "inferior courts". That said, it's your call, it's your money on the line.

On a separate subject, have you had a thought about the ethical questions I raised yet a couple of pages back?

Dear Craig1,

I repeat what I have stated before, you can proceed on the basis of what you want to believe, I will proceed with mine, I have no issue with that.

I have shared what I believe is important to contractors, should you not wish to use that, that is your look out.

I have already stated that I am not prepared to comment on current litigation for obvious reasons.

At least now if you choose to rely on the "Conduct Regs" as applicable statute, you are fully aware of one of the arguments you will be up against.

Good luck with that.

[DirtyDog]

The issues I have raised are not a CNL issue but will be applicable to all contracts. It may just remove some of the ambiguity that existed on this forum for many years now.

If this sets a precedent, as you keep saying, it would be useful to have a transcript or even a court reference so that we can read it ourselves.

It's been asked a number of times in the thread without any answer, so all anyone has to go on is the CUK article and the posts from a director of the company involved. Forgive me for being more than a little sceptical about believing anything that you say about this, but you seem to expect everyone to trust the word of a director of the company directly involved, without providing any information other than your opinion.

I'll reword my previous question since you aren't going to answer that one - when you put the clause in the contract which said that CNL were acting as an Employment Business, did the company genuinely believe they were an Employment Business (and only found out that they weren't when the situation went legal) or did you know that the clause was irrelevant because you didn't meet the legal definition of an Employment Business according to statute?

I also agree with you that all parties should act honestly and ethically.

So what's the answer - how honest and ethical were you when you included that clause in the contract?

[DirtyDog]

At least now if you choose to rely on the "Conduct Regs" as applicable statute, you are fully aware of one of the arguments you will be up against.

One of the many things that I can't understand from the very little that we know of the case - the contractor says he was opted out; you say the client also knew he was opted out. So why was there ever a case brought?

Was the argument that the client didn't know and therefore the contractor was by default opted in, and therefore you weren't within your rights to withhold the £15k owed and charge the £39k fee for going direct?

[malvolio]

Specifically relating to the issue of control and IR35. As I have previously stated, a master of a ship, can have limited control and direction exerted upon him yet still be in a contract of service. So to state that the levels of control are not sufficient for IR35 purposes is misleading at best and incorrect at worst.

Right. So I've been getting that wrong for the last 15 years as well then...

Yes he may, if he signs up to be in such a contract. I don't, I deliberately sign up for a contract for services and deliver those services in that context with the agreement of my clients. Unless that contract is a complete sham - which according to your logic it can never be since any clause or statement it contains can be set aside at the whim of an external judiciary so it doesn't really matter what is says - then I am outside IR35. QED.

Seriously it's not me that's getting it wrong. You're the one arguing that the verdict in a specific case judged on the basis of a previous superior ruling can then influence the outcome of a number of other dissimilar ones. It can't. The referenced superior ruling may not even be relevant to those other cases.

And I note you still haven't defended your assertion that stating something in a contract doesn't have an effect if it conflicts with a legal definition and so can be ignored. Maybe so, but it still renders the entire contract a sham.

[Rory Dwyer]

If this sets a precedent, as you keep saying, it would be useful to have a transcript or even a court reference so that we can read it ourselves.

It's been asked a number of times in the thread without any answer, so all anyone has to go on is the CUK article and the posts from a director of the company involved. Forgive me for being more than a little sceptical about believing anything that you say about this, but you seem to expect everyone to trust the word of a director of the company directly involved, without providing any information other than your opinion.

I'll reword my previous question since you aren't going to answer that one - when you put the clause in the contract which said that CNL were acting as an Employment Business, did the company genuinely believe they were an Employment Business (and only found out that they weren't when the situation went legal) or did you know that the clause was irrelevant because you didn't meet the legal definition of an Employment Business according to statute?



So what's the answer - how honest and ethical were you when you included that clause in the contract?

Dear Dirty Dog,

The contract that was used as our base contract was the REC contract.

In relation to answering your ethical question CNL was always of the opinion that the highly skilled contractors that we supplied, like myself, were not under the control of their respective hirers. Given the ambiguity that surrounds the myriad of legislation concerning this and many other areas (hence why this legislation is up for red tape review). As a second tier precaution, and to remove any ambiguity surrounding what legislation applied the contractor opted out and the hirer was aware of this opt out.