Has opting in cost me the gig?

**Bluebird** · 30 May 2007, 10:56

Originally posted by TheFaqqer

I decided for my latest contract that I should opt in to the agency regulations - no real idea why, but the jist of what I'de read here implied that it might be a good thing. Agent whent through the standard "it's not as good for IR35" line, but I held firm and decided to opt in.

Gig is due to start Monday, but the agency haven't sent me a contract yet, which I want to get reviewed by Qdos. The pimp has just explained to me that they are having problems with writing the contract, since their contract with the client says that the client will only pay if invoiced within 8 weeks, but if I'm opted in I can bill them at any time.

The pimp has suggested / implied that if I opt out, then the contract will be more IR35 friendly (again!) - I've told him that I can't opt out now, since I've been introduced to the client, which he said that he wasn't aware of!!

Am I right that I can't opt out now that I've interviewed? The agency is the sole resourcer for a big project that will last for a while, so I'm a little wary that I may have just cost myself.

I'm also inclined to sign the contract, and then argue that I'm outside IR35 based on my working conditions rather than the paperwork - any ideas on how successful this is likely to be?

TIA,

Faqaqer

stick to your guns, opting in has naff all to do with IR35.
Don't forget if you are opted in you can then go direct to client - I'd advise your agency that if they don't get the contract to you by COP Today, then you'll contact the client direct with a view to working direct for them.

That should focus their minds.

**Ardesco** · 30 May 2007, 11:30

You can sign the contract, it won't change the fact that you are opted in. Even if you sign something saying you are opted out as far as law is concerned you are opted in because you have met the client, there is no legal way for you to be opted out now no matter what you sign, or what the agency says.

The only way they could make out you are opted out is to have you sign a backdated statement that opts you out (and this would not be legal either, I suspect this could probably invoke fraud legislation as well).

Bascially the agency are trying to play hardball because they don't want to do the associated work that being opted in requires (i.e. verify that you are who you say you are and verify that you have not lied on your resume).

**Not So Wise** · 30 May 2007, 12:51

Bascially the agency are trying to play hardball because they don't want to do the associated work that being opted in requires (i.e. verify that you are who you say you are and verify that you have not lied on your resume).

Or even more likely, they want to keep their "cannot work for client direct for X amount of time" in the contract and want to be able to withhold payments if the client does not pay.

Most individual agents don't understand the whole opt in/opt out thing (nor most contractors tbh) so it is really only the above two things that they care about.

This lack of understanding is most obvious in them generally trying to get you to sign the opt out after the interview, when it is already to late to opt out and regardless of what you sign you are defacto opted in

As to the agents concerns regarding invoicing AFAIK there is nothing like that in the regs beyond the restriction on them withholding payments, so unless someone knows different all they need to do is state the invoicing/payment terms in the contract (though if they try to get you to accept a 8 week delay on invoicing/payment I recommend you tell them to take a hike)

**TheFaQQer** · 31 May 2007, 09:45

Today's follow-up is that the agency still insists that I can opt out, even at this stage. Their reasoning is that since they haven't passed my company details to the client, I haven't been introduced to them! Since I've interviewed, I can't understand how they can even think that...

Hopefully, should have the contract through today, ready for Qdos to check it for me...

**Ardesco** · 1 June 2007, 09:08

I would suggest you say

"Whatever you belive matey, I'll sign your form for you but if it ever gets as far as a legal challenge the courts will be of the view that I am opted in and will probably laugh at you when you try to weasel your way out of it"

Job done

**TheFaQQer** · 1 June 2007, 09:17

I'll ring the client this afternoon and tell them that I won't be there next week, as I still haven't got a contract.

Frustrating, as I interviewed for the role on May 8th, and was offered it on May 15th!!

If I send the agency my standard (PCG) contract, and then start work, are they obliged to accept it?

**tino** · 1 June 2007, 09:25

Originally posted by TheFaqqer

I'll ring the client this afternoon and tell them that I won't be there next week, as I still haven't got a contract.

Frustrating, as I interviewed for the role on May 8th, and was offered it on May 15th!!

If I send the agency my standard (PCG) contract, and then start work, are they obliged to accept it?

It depends when you start,

I think that the last iteration of the contract, seen by both parties, when you commence work takes precedence (unless challenged) over all others

**TheFaQQer** · 3 June 2007, 07:33

Finally got a contract at 3pm on Friday. Agent then rang me and said "oh by the way, the first week is in Slough, not in central London as we said, but you'll be in London after that" - not too far apart BUT all my travel for the next month is booked to get me in and out of London Euston, so I'll need to get across London. I asked if they were paying expenses for travel between sites, and was told no, so I said forget it.

6pm - email from agent saying that they haven't managed to determine whether they will pay expenses or not, so can I turn up in Slough on Monday and they'll "sort it out" on Monday.

SO - I rang the client yesterday and explained the situation to him, and said that I wouldn't be on site until I've got a contract that I'm happy with, since I wouldn't be insured. Needless to say, he was a little disappointed, but understood completely where I was coming from. Turns out that I need to be in Slough until I can get security clearance (however long that takes these days - the agency hasn't even sent the forms through to complete), which is OK, as long as I know where I'm meant to be working.

I've emailed the contract to Qdos to see what they suggest, and may cover all bases by sending it to B&C as well...

**TheFaQQer** · 4 June 2007, 09:53

Just re-read the contract - there's no right of substitution clause!!!

Rang the pimp and he says that I can still opt out, and if I opt in then I can't have a contract with a right of substitution clause in it.

Part of me says that I should "opt out", but since the guidelines indicate that this isn't worthwhile, I'll get a better contract and can then ignore the opted out part of it!

Has opting in cost me the gig?