Working time directive nonsense from agency

**tractor** · 31 July 2014, 15:52

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Originally posted by Chervil View Post

One of the things that the agency for a new contract wants me to fill in is an opt out for the working time directive regs.....

I am operating as a limited company and the contract and everything else have reflected this correctly.

My understanding is that the working time directive opt out is between an employee and their employer. I'm certainly not employed by the agency and I'm not even really employed by my Ltd yet.

I can't see how any agreement between me (personally) and the agency on this matter is valid in any way but what I'm bothered about is if it would be an IR35 red flag. If I'm filling out some form that implies that kind of relationship between me and the agency presumably that's a very bad thing.

I've pointed out to them that I'm not their employee and so it's not relevant and am waiting to hear back their view on it but wondered about people's thoughts here?

As with all these things, it's all about the wording and who is expected to opt out, you or your company? Rarely do these demands make sense because hardly any agents even know what employment and finance law is about, most cannot even distinguish you from your company.

**Chervil** · 31 July 2014, 15:54

I was just a little surprised because I have what seems like a contract put together correctly with sensible terms of reference between the agency and the company and then this form that wants to call me personally an 'Agency Worker'.

Sigh

**SueEllen** · 31 July 2014, 16:06

You can either:
1. Explain to the thick agent why this isn't applicable to you, OR,
2. Ignore it.

If you ignore it you risk a thick admin person contacting you and asking you why you haven't signed it at some point near the end of your contract.

**LisaContractorUmbrella** · 1 August 2014, 06:38

It is definitely the EC Working Time Directive which limits the number of hours that can be worked in a week and not an opt out from the Conduct Regs?

**Chervil** · 1 August 2014, 06:40

Definitely not the agency conduct regs.

It doesn't make a lot of sense.

I don't mind signing something meaningless and invalid I'm just worried if there are IR35 implications....

**LisaContractorUmbrella** · 1 August 2014, 06:48

Does seem a little strange. Are you in an industry where you could be required to work more than 48 hours a week? If you are it may just be that the agency's trying to protect their back. I can't see that it would be a major negative point re IR35

**Chervil** · 1 August 2014, 06:51

It's common for permanent staff in my industry to sign an opt out (less common for >48/hours to actually happen).

I think the agency just doesn't understand and is trying to cover themselves.

Since it's actual employment law surely any agreement between me and the agency suggests that kind of relationship exists, hence is a potential IR35 issue...

**LisaContractorUmbrella** · 1 August 2014, 06:54

If you had the 3 basic requirements of IR35 covered - no SDC, no MOO and an unfettered ROS then signing the opt-out certainly wouldn't negate those; if your position was less strong then it could factor in slightly I suppose

**Chervil** · 1 August 2014, 07:07

Happy that all 3 are covered correctly in my contract.

I'll probably just try to avoid signing it for now and see what happens

Working time directive nonsense from agency