+ Reply to Thread
Page 1 of 59 1 2 3 11 51 ... LastLast
Posts 1 to 10 of 588
  1. #1

    Ddraig Goch


    Join Date
    Apr 2011
    Location
    Cymru
    Posts
    8,452
    Thanks (Given)
    86
    Thanks (Received)
    110
    Likes (Given)
    936
    Likes (Received)
    416

    Default Opt out of Conduct of employment agencies 2003 act?

    Having read the leaflet I'm assuming this is a good idea because it seems not to do would harm you;re case with regards to IR35?

  2. #2

    Banned


    Join Date
    Jul 2008
    Location
    Atlantis
    Posts
    8,066
    Thanks (Given)
    184
    Thanks (Received)
    117
    Likes (Given)
    222
    Likes (Received)
    531

    Default

    Quote Originally Posted by psychocandy View Post
    Having read the leaflet I'm assuming this is a good idea because it seems not to do would harm your case with regards to IR35?


    As to IR35, Opting Out has no bearing on IR35. Agents always tout the line that it does, but it's utter tripe.

    There are 3 prime indicators for IR35 (not that HMRC have won many IR35 cases)

    Mutuality of Obligation
    Direction and Control
    Right of Substitution

  3. #3

    Ddraig Goch


    Join Date
    Apr 2011
    Location
    Cymru
    Posts
    8,452
    Thanks (Given)
    86
    Thanks (Received)
    110
    Likes (Given)
    936
    Likes (Received)
    416

    Default

    Quote Originally Posted by TykeMerc View Post


    As to IR35, Opting Out has no bearing on IR35. Agents always tout the line that it does, but it's utter tripe.

    There are 3 prime indicators for IR35 (not that HMRC have won many IR35 cases)

    Mutuality of Obligation
    Direction and Control
    Right of Substitution
    Yeh. I heard that. Got a leaflet from REC (Recruitment and Employment Confederation) that says it does harm IR35.

    So what are the advantages to not opting out? What do most people do?

  4. #4

    Banned


    Join Date
    Jul 2008
    Location
    Atlantis
    Posts
    8,066
    Thanks (Given)
    184
    Thanks (Received)
    117
    Likes (Given)
    222
    Likes (Received)
    531

    Default

    Quote Originally Posted by psychocandy View Post
    Yeh. I heard that. Got a leaflet from REC (Recruitment and Employment Confederation) that says it does harm IR35.

    So what are the advantages to not opting out? What do most people do?
    You're aware that REC is an agents trade body aren't you? Do you honestly believe what agents say?
    Agents desperately want you to Opt Out and will resort to all sorts of devious and underhanded nonsense including outright lies to achieve it, however 95% of the time they don't do it correctly so it's rarely valid anyway.
    Do a search on Opt Out and you will find loads of info. Highlights (if memory serves) being:-

    1. If you've got a signed timesheet the agent can't refuse to pay you, same is true if the client goes bust.
    2. Contract clauses that prevent you returning to a client of theirs direct or via another agent for a period greater than 8 weeks aren't allowed.

    Opting Out is unwise.
    Last edited by TykeMerc; 22nd May 2011 at 18:28.

  5. #5

    Super poster


    Join Date
    Feb 2010
    Location
    London, UK
    Posts
    3,996
    Thanks (Given)
    36
    Thanks (Received)
    29
    Likes (Given)
    153
    Likes (Received)
    88

    Default

    Quote Originally Posted by TykeMerc View Post
    Opting Out is unwise.
    Agree 100% with TykeMerc. We are talking about "The Conduct of Employment Agencies and Employment Businesses Regulations 2003". Not opting out:

    1. Is not an IR35 pointer
    2. Means the agency have to pay you even if the client won't sign timesheets for some reason or if the client won't pay the agency.
    3. Limits the restrictive covenants in your contract to 14 weeks from the start or 8 weeks from the end.
    4. Section 32(13) of the regulations states that agencies cannot refuse to work with you because you won't opt out. The PCG say this.
    PCG would like to emphasise that it is a contravention of the Act for any agency to require you to opt out of the Agency Regulations.

    It may also be illegal for them to pressure you to do so by threatening not to put forward your CV. Should any members find themselves being required to opt out of the Agency Regulations, they should inform PCG via the link on this page.
    The REC also agrees saying that agencies must not make their services conditional upon you opting out.

    There is a piece about it here Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK.

    There is a 50 page PDF from the DTI offering detailed analysis of the regulations.
    The PCG have some advice regarding opting out (members only). I disagree with their advice, but if you are looking for an opinion biased towards opting out then you may find it helpful.

    These pieces are are an interpretation of the law, if you want you can also read the relevant part of the original legislation and amendments to the legislation. Be warned that it may be an insomnia cure.

    It's been discussed a number of times on the forum but it's not an easy one to search for because the forum software thinks the search terms are too short. but try to Google for:

    site:contractoruk.com opt out

    There is some debate about when the opt out needs to be done. What the legislation says is that the opt out must be done "before the introduction or supply" of the worker. Lots of people say that they take this to mean that opt out is not valid unless it's done before the introduction but it could also be argued that the opt out is valid if it's done after the introduction but before the supply (eg, before you start working). It's a grey area and as far as I know it's never been tested in court. Certainly, signing the opt out may be construed as evidence that you wanted to opt out and it could be used against you if you tried to argue that it was done in an invalid manner.

    There are lots of sad stories from contractors who could have avoided a lot of grief if they didn't opt out. My advice is don't opt out unless you really know what you are doing. Agencies will try to tell you that everyone opts out but a very scientific poll on this forum shows that this is not true.

    If an agency insists that you must opt out or tells you that they only take "opted out" contractors then they are acting illegally. Do your fellow contractors a favour and report the agency to the following organisations:
    1. Employment Agency Standards Inspectorate eas@berr.gsi.gov.uk
    2. REC (if the agency is a member)
    3. PCG agencyregs@pcg.org.uk (if you aren't a PCG member, consider joining too)

    If you are wondering what fellow contractors do, then there is a opt in / opt out poll where you can vote for your favoured option.
    Last edited by Wanderer; 13th April 2013 at 13:08. Reason: Added links to how to report abuse of the opt out

  6. #6

    Ministry of Love

    realityhack's Avatar
    Join Date
    Feb 2006
    Posts
    9,663
    Thanks (Given)
    1
    Thanks (Received)
    108
    Likes (Given)
    8
    Likes (Received)
    123

    Default

    Brilliant summary - well worth a sticky until incorporated into FAQs.

  7. #7

    TPAFKAk2p2

    mudskipper's Avatar
    Join Date
    Sep 2009
    Posts
    24,428
    Thanks (Given)
    759
    Thanks (Received)
    1251
    Likes (Given)
    6033
    Likes (Received)
    4567

    Default

    Quote Originally Posted by Wanderer View Post
    Opting out:

    1. Is not an IR35 pointer
    2. Means the agency have to pay you even if the client won't sign timesheets for some reason
    3. Limits the restrictive covenants in your contract to 14 weeks from the start or 8 weeks from the end.
    4. Agencies cannot refuse to work with you because you won't opt out
    Not opting out shirley?

  8. #8

    Ddraig Goch


    Join Date
    Apr 2011
    Location
    Cymru
    Posts
    8,452
    Thanks (Given)
    86
    Thanks (Received)
    110
    Likes (Given)
    936
    Likes (Received)
    416

    Default

    Thanks for all the advice everyone.

    Yeh. Agency is certainly trying to take advantage of my lack of knowledge on this one. OK, so no opt out for me.

    I thought the REC might be an agency body. Their leaflet blatantly says that IR35 will be affected if you dont opt out.

  9. #9

    Banned


    Join Date
    Jul 2008
    Location
    Atlantis
    Posts
    8,066
    Thanks (Given)
    184
    Thanks (Received)
    117
    Likes (Given)
    222
    Likes (Received)
    531

    Default

    Quote Originally Posted by psychocandy View Post
    Thanks for all the advice everyone.

    1. Yeh. Agency is certainly trying to take advantage of my lack of knowledge on this one. OK, so no opt out for me.

    2. I thought the REC might be an agency body. Their leaflet blatantly says that IR35 will be affected if you dont opt out.
    1. Business as usual for the vast majority of agencies, they love inexperienced contractors who believe what they say. It's not hard to draw parallels between a lot of agency staff and failed double glazing salesmen.

    2. That's what's commonly known to contractors as bullsh1t and could even be described as deception.

  10. #10

    Ddraig Goch


    Join Date
    Apr 2011
    Location
    Cymru
    Posts
    8,452
    Thanks (Given)
    86
    Thanks (Received)
    110
    Likes (Given)
    936
    Likes (Received)
    416

    Default

    Quote Originally Posted by TykeMerc View Post
    1. Business as usual for the vast majority of agencies, they love inexperienced contractors who believe what they say. It's not hard to draw parallels between a lot of agency staff and failed double glazing salesmen.

    2. That's what's commonly known to contractors as bullsh1t and could even be described as deception.
    Yeh. Thanks.

    As I think I said in another post, I'm returning to contracting after being permie for 10 years and I've forgotten some of the tricks the agencies pull....

+ Reply to Thread
Page 1 of 59 1 2 3 11 51 ... LastLast

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts

Content Relevant URLs by vBSEO 3.6.0 ©2011, Crawlability, Inc.