Opt in on contract renewal when you've orginally opted out?

[valere24]

Hi,

I have been contracted via an agency for the last 2 years. The end client wants to extend my contract for another year.
In my original contract I originally opted out from the Employment Business Regulations 2003.

I'm in the process of signing a new contract with the agency, but I would like to opt back in the regulations as a way to reduce and control the handcuff clauses.
Is this possible?

I've read the following "Workers who’ve opted out can decide to follow the rules again, but only when they’ve finished working for the hirer they opted out with." in
the regulations.

I'm not sure if signing a new contract would meet the requirements of "finished working for the hirer" as it is for the same hirer. Any ideas?

[northernladuk]

You understand the exact rule around handcuffs yes?

You are aware you are caught by the 24 month rule, in fact might have been caught awhile ago depending on the exact dates?

Andy Hallet says no you can't in the thread below but a couple of people mention you can change it by written agreement so a little confusing.

http://forums.contractoruk.com/busin...ml#post1798033

Are you sure your agency would even accept it at any point? Some agencies just won't deal with opt in contractors.

[mike67]

TL;DR - you probably can't opt out at a straight extension (assuming you were validly opted in) unless you can change your role and get a new contract for the new work (and even they you might not be able to)

I guess that the OP wants to opt in to make things like restrictive covenants go away. Under the Conduct Regs you cannot penalise workers from working directly for the client or through different agencies (although agencies may prevent this in their contract with the appropriate client). Or it could be to stop them enforcing provisions like withholding payment if they have not been paid by the client.

Regulation 32(11) says that any notice to withdraw an opt out "shall not take effect until that person stops working in that position". If you are being extended in the same "position" then you could not opt back in, and even if you had a new contract it is likely that you would be seen as working in the same position. If you moved to a different role within the client and had a new contract, you could probably argue that you could opt back in then.

One of the issues with this is that if you are working outside IR35 the notion of working in a position doesn't really work, as technically your company will be providing a service rather than filling a position.

Many agencies do not actually follow the rules of the Conduct Regulations in regard to opt outs. For instance, they cannot make it part of the contract and force you to opt out which some still do. They need to get agreement both from your company and from you as an individual to opt out, whereas some only get a single approval from your company. And they need to advise the client that you wish to opt out before they introduce you to them (this is a bone of contention often as introduce is usually interpreted as when they agree a contract for your supply to them rather than when they send you for an interview). If they have not followed the rules, the opt out is invalid.

There is, however, an argument that if you are not acting under direction and control then you are not covered by the Conduct Regulations anyway (the definition of work finding services specifically mentions "acting for and under the control" of the client). So it may in practice be impossible for the rules to apply to you.

[SueEllen]

One of the things you can do or should have done when you got your contract was see if you could negotiate the handcuff clause down. However be aware as the others have pointed out that the agency may have tied the client up.

[northernladuk]

Many agencies do not actually follow the rules of the Conduct Regulations in regard to opt outs. For instance, they cannot make it part of the contract and force you to opt out which some still do. They need to get agreement both from your company and from you as an individual to opt out, whereas some only get a single approval from your company. And they need to advise the client that you wish to opt out before they introduce you to them (this is a bone of contention often as introduce is usually interpreted as when they agree a contract for your supply to them rather than when they send you for an interview). If they have not followed the rules, the opt out is invalid.

They can, however, decide not to deal with contractors that want to opt in. Not forcing you, just giving you the option of opt out or no gig.

Thinking back we've had a couple of posts about wanting to go direct and what options are there around the opt in status and handcuffs but from memory the actual rules of the opt in never came in to play and helped or hindered the situation whatever the outcome was.

[mike67]

They can, however, decide not to deal with contractors that want to opt in. Not forcing you, just giving you the option of opt out or no gig.

Usually they have already sold you into the client and banked their commission by the time it comes to the opt in/opt out discussion, and they are reluctant to sacrifice the contract for this. Also it is specifically not allowed in the Regs to "make the provision of work-finding services to a work-seeker which is a company conditional upon [opting out]", so if they insisted on you opting out you could formally complain about them.

TBH most agencies aren't stupid enough to sue their contractors for breaching their restrictive covenants as they would get a very bad name very quickly. As I said before, they usually prefer to put the restrictions into their agreements with the end clients (but even then they are usually bullied out of them if needed).

[SueEllen]

Usually they have already sold you into the client and banked their commission by the time it comes to the opt in/opt out discussion, and they are reluctant to sacrifice the contract for this. Also it is specifically not allowed in the Regs to "make the provision of work-finding services to a work-seeker which is a company conditional upon [opting out]", so if they insisted on you opting out you could formally complain about them.

Cojak and I spoke to the agencies inspectorate at different times in the same autumn.

Cojak got the answer they can and I got the answer you can't.

[northernladuk]

Cojak and I spoke to the agencies inspectorate at different times in the same autumn.

Cojak got the answer they can and I got the answer you can't.

Yep that was the thread I always thinkg about. I'm sure Andy or one of our other agency posters also said they can have whatever policy they want which I must admit kinda made sense to me so I'm more on the thinking they can decide to operate in one way and not the other, it's their choice.

Either way I wouldn't be giving up gigs over the opt out/in situation personally.

[SueEllen]

Yep that was the thread I always thinkg about. I'm sure Andy or one of our other agency posters also said they can have whatever policy they want which I must admit kinda made sense to me so I'm more on the thinking they can decide to operate in one way and not the other, it's their choice.

Either way I wouldn't be giving up gigs over the opt out/in situation personally.

Correct as there are things you can negotiate if necessary.

[malvolio]

Yep that was the thread I always thinkg about. I'm sure Andy or one of our other agency posters also said they can have whatever policy they want which I must admit kinda made sense to me so I'm more on the thinking they can decide to operate in one way and not the other, it's their choice.

Either way I wouldn't be giving up gigs over the opt out/in situation personally.

This originated with IPSE asking DTI hard questions about abuse of the opt out. Their answer was basically a company can choose who it wants to do business with and under what circumstances. Nuff said...