RBS, contractors and IR35

[webberg]

I'm not really au fait with IPSE and their purpose, actions and objectives, but confess that the news they are supporting somebody claiming employment rights at an Employment Tribunal to be surprising.

As to the description of JtB, I have no view.

I am though sick and tired of hearing that his rather obscure and now very old case is in fact the magic solution to EVERY problem that the IR35 of 2017 and promised in 2020 brings to EVERY party in the process.

Government policy says that the definition of employment for tax and employment law purposes will NOT be aligned.

Ergo, a Tax Tribunal or an Employment Tribunal would be acting beyond its jurisdiction if they decided that the definitions should be same. Further, if they decided that an inside IR35 test was a telling weight in deciding that somebody was entitled to employment law protection, then they have effectively changed Government policy and usurped the authority of Parliament by the back door.

I'm not a lawyer but I guarantee that in such a case, the decision would be swiftly challenged by Government as the tribunal acting beyond its jurisdiction and the decision laid aside.

I'm also tired of how constant reference to said old and obscure case is effectively stifling debate and discouraging others from contributing.

I therefore repeat to JtB and make a polite request. Can we please drop the constant jammering about your case (we all now have more information and insight into it than we need)? Accept that it never was and never will be the magic bullet you believe.

[JohntheBike]

I'm not really au fait with IPSE and their purpose, actions and objectives, but confess that the news they are supporting somebody claiming employment rights at an Employment Tribunal to be surprising.

As to the description of JtB, I have no view.

I am though sick and tired of hearing that his rather obscure and now very old case is in fact the magic solution to EVERY problem that the IR35 of 2017 and promised in 2020 brings to EVERY party in the process.

Government policy says that the definition of employment for tax and employment law purposes will NOT be aligned.

Ergo, a Tax Tribunal or an Employment Tribunal would be acting beyond its jurisdiction if they decided that the definitions should be same. Further, if they decided that an inside IR35 test was a telling weight in deciding that somebody was entitled to employment law protection, then they have effectively changed Government policy and usurped the authority of Parliament by the back door.

I'm not a lawyer but I guarantee that in such a case, the decision would be swiftly challenged by Government as the tribunal acting beyond its jurisdiction and the decision laid aside.

I'm also tired of how constant reference to said old and obscure case is effectively stifling debate and discouraging others from contributing.

I therefore repeat to JtB and make a polite request. Can we please drop the constant jammering about your case (we all now have more information and insight into it than we need)? Accept that it never was and never will be the magic bullet you believe.

I think we must all wait and see what the outcome of the two cases in the ET is, before expounding any further opinions.

[northernladuk]

.
I guess you need to find a better definition for me!

I can think of a few

[DeludedKitten]

"He was trying to prove he was an employee"

absolutely wrong. I was trying to prove the exact opposite and I had to present a reasonable case so as to neutralise any claim by HMRC that the case was construed to affect IR35. And what I proved is that a BOS with no ROS could not be judged an employee, disguised or otherwise, and in that endeavour, it showed the fallacy of IR35.

If you really were trying to prove that you weren't an employee, why did you appeal the judgement that said you weren't an employee?

The tribunal said you weren't an employee so you appealed that decision, without support or a lawyer. Why would anyone waste their time and effort and cost to appeal the decision they wanted?

Unless of course you did want to be an employee, got whipped twice at tribunal, and want to rewrite the story all these years later. But I'm sure that's not the case.

[northernladuk]

Full write up is here.

[webberg]

I think we must all wait and see what the outcome of the two cases in the ET is, before expounding any further opinions.

I really think not. That amounts to censorship which is hardly ever a good idea.

We all have to live and work in the real world and not one in which something "might" happen but which we all think will be constructed to meet our various prejudices.

By all means let's share those prejudices and see if we think any are better than others.

[jamesbrown]

I've been banned by IPSE for 6 months now

I'm shocked, shocked I tell you!

[DeludedKitten]

Full write up is here.

Shout99 : <b>A brave man has his day in court</b> -

I've read that before.

It doesn't explain why if the objective was to show that JtB was not an employee (as claimed in this thread) why he would "win" at tribunal (losing the tribunal showed he was not an employee) and then appeal that decision if he'd won (as per claims since ad nauseum including this thread).

[WordIsBond]

"I think it's questionable advice"
I wasn't giving advice, just demonstrating that in at least one case, i.e. mine, the contract trumped the actual reality of the engagement and the judge actually said this in his summing up. So, it's not beyond the bounds of imagination that it could happen again.

Actually, you said, in a response to a comment about IR35:

The working practises will be taken into account in conjunction with the contract.

Where the working practises conflict with the contract, even then they may not over ride the contract.

That's advice. You were giving advice, which in the second sentence is very poor advice. You then backed it up with:

at the risk of howls of protest from you, this happened in my EAT.
etc, etc
blah, blah, blah

To be entirely clear so even you can get it, I know of no precedent in case law on a TAX case (IR35) where the working practices do not override the contract. Hasn't happened. Working practices always override the contract. You are talking about an EAT. That's horrible advice you are offering, if anyone goes into an IR35 case thinking the contract has any chance of trumping working practices they are a fool. You need to stop.

Yes, I agree with you that the difference between tax law and employment status is unfair and a vulnerable point in the status quo. Yes, it gives a political argument that might possibly get somewhere someday. Yes, it could even result in a court judgment someday that blows the thing up. But that court judgment is not going to come in an IR35 case, it's going to come in an Employment Tribunal, if it ever happens. If anyone wants to stay outside IR35 they need to have the contract right but that will never trump working practices. Ever.

edit: Sorry, I meant to respond to this, too:

My opinions are just as valid as anyone else's here.

Valid: having a sound basis in logic or fact; reasonable or cogent.
The wonderful thing about 'logic' and 'fact' is that these things are measurable. This isn't mumsnet. We can actually look at facts and logic and measure the validity of opinions. The fact of your case is real. Many of the interpretations and extrapolations you are making from it are not backed by facts and do not have a sound basis in logic.

[WordIsBond]

Government policy says that the definition of employment for tax and employment law purposes will NOT be aligned.

Ergo, a Tax Tribunal or an Employment Tribunal would be acting beyond its jurisdiction if they decided that the definitions should be same. Further, if they decided that an inside IR35 test was a telling weight in deciding that somebody was entitled to employment law protection, then they have effectively changed Government policy and usurped the authority of Parliament by the back door.

I'm not a lawyer but I guarantee that in such a case, the decision would be swiftly challenged by Government as the tribunal acting beyond its jurisdiction and the decision laid aside.

'Government policy' (as opposed to legislation) can certainly be overturned by a court. That's exactly why Article 50 required a vote of Parliament, because the government's policy was overturned.

A court certainly could rule that this legislation is a violation of Article 6 of the Human Rights Act (1998). Liability for these taxes is not being determined by 'an independent and impartial tribunal established by law.' It is being determined by a partial client that has their own interests to protect. I suspect it will be challenged on that grounds, and on its face, it should lose. That would almost certainly put the government in the uncomfortable position of either needing to repeal their 'reform' or, at the very least, to specifically legislate that tax and employment rights are not to be aligned. The latter would perhaps make it more possible to claim the client is 'disinterested and impartial' but it would be a really, really bad look for the government to legislate that.

You're giving government policy more authority than it has. Legislation has legal force, government policy can change if Boris wakes up with wheezles and sneezles and decides to amuse them in a different way today. And courts rule against government policy often enough that it hardly causes a tremor.