Re: Judgement of Justice Feldman.
"I don't see why a statutory test replacing a well-used body of law that's been built up over time would be an improvement."
Well-used in the sense of extensively used. "Well" in the sense of "good" is arguable.
Consider for example that civil law decisions are supposed to be taken on the basis of balance of probabilities. In an IR35 case the alternatives being argued are a contract of employment vs a contract for provision of services. Shouldn't that mean that a court should look at each factor and ask "does it fit a commercial contract for services?" as well as "does it fit a contract of service?". One of the crucial tests has been "personal service" of a named person. At one time the IR website had a sample contract for provision of services to the IR Commissioners. I may still have a copy somewhere; I took the precaution of downloading it. In the middle of that was a key man clause to the effect that someone who the Commissioners (i.e. the client) considered important to the delivery of the services couldn't be substituted without their agreement. Put that in a contract as a term the IR wanted to protect itself and it was a normal commercial clause. Put it in a contract the IR wanted to challenge and it was an indication of employment because the possibility of a commercial contract doesn't get weighed in the balance.
Then there's the back-to-back contract problem. The freelancer has a contract with the agency saying one thing, the client has a contract saying something else. HMRC got a decision saying that the provider is bound by the client side contract which he hasn't seen with terms he wouldn't have agreed to. How did they get that one through? They didn't take on a contractor able to defend himself, they took on one who was so ill that that the tribunal had to conduct the hearing in his home. What's the underlying commercial equivalent? The agent is a broker who sells something he doesn't have (the employment-like contract the client wants) in the hope he'll be able to get it. I've twice had a car dealer sell me something he couldn't get - in one case the entire model was discontinued* and in another it was just the colour. In the case of a freelancer the agent is hoping that the circumstance won't arise when the difference in contracts becomes significant in the course of business; if it does they risk being sued by one party or even both just like any other commercial transaction gone wrong where a settlement can't be achieved - it's a normal broker's commercial risk and it's not the outcome that the HMRC got a precedent on.
*Strictly speaking it wasn't me to whom they were('nt) selling it. It was picked from my employer's company car list so it was some leasing company so I had no real say and got stitched up with a lump of ghastly diesel rubbish - no I didn't want to pay to buy it when I took early retirement a little later.
Biting the hand that feeds IT
