Screwed over by agent acting unlawfully

[TykeMerc]

Except it's illegal, but hey...

llegal maybe, but impossible to prove in practice and incredibly common. There are plenty of agents that ask up front if you will be Opting out and then you don't get an interview for the role, it's impossible to know if they submitted the CV if you refuse to Opt out.

The whole Opt out situation is a massive screwup that was created BY the PCG (now IPSE) and it's been used as a weapon to beat us with ever since.

Just a wild thought but instead of asking questions on the absolute basic info any contractor should be aware of, how about doing a little research? I think the Opt Out and what it means has been discussed on here once or twice already...

He's doing some research, but there's contradictory info out there, some of which you've posted, due diligence asking the question is reasonable.

[TheVoice]

Not sure I understand your question - you already know that, don't you?

Sure do, it was more of a rant to get it out than anything else.

Everything legal is in train to sort these numpties out including the BIS bits. I'm in the advantageous situation of having all calls with the agency recorded & kept all the emails so I've got everything to show what has gone on, and I have geotagged & timestamped photos proving I was on site, so they have no excuse to withhold payment.

To those who have DMd to ask the agency - hope I helped you to avoid hassle! & no, it's not Rullion

[malvolio]

llegal maybe, but impossible to prove in practice and incredibly common. There are plenty of agents that ask up front if you will be Opting out and then you don't get an interview for the role, it's impossible to know if they submitted the CV if you refuse to Opt out.

The whole Opt out situation is a massive screwup that was created BY the PCG (now IPSE) and it's been used as a weapon to beat us with ever since.

Possibly true, and it's why I keep banging a drum that they sit up and take notice and f***ing do something about it. However, it is not the opt out that's the problem, it's the persistent abuse of it by the agencies that's the problem. BIS are no help, they say that while misuse of the regulations is an offence, companies are at liberty to deal with whoever they want to so in effect no agency is making opting out a condition of offer.

He's doing some research, but there's contradictory info out there, some of which you've posted, due diligence asking the question is reasonable.

Asking about the various options certainly is. Asking "what is opt in vs opt out" though..?

Anyway, just to clarify my position, there are several schools of thought at play:

1. Not opting out means that you have some significant legal and commercial safeguards over payment and handcuff clauses
2. Opting out can act as a lever to get a more commercially advantageous contract including conditions that strengthen your position vis-á-vis IR35
3. Genuine contractors with good contracts have no need of the non-opted out protection: they are in business and intend behaving as such.
4. Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker: we are not agency workers and the Regs do not apply to genuine businesses, so any sensible freelance contractor will simply ignore the whole issue as being irrelevant to them.

Pick whichever you fancy, there are valid counter-arguments to each one. FWIW I'm aligned to the last one.

[Boney M]

I'd be thankful I am out of there and move one

[TykeMerc]

Possibly true, and it's why I keep banging a drum that they sit up and take notice and f***ing do something about it. However, it is not the opt out that's the problem, it's the persistent abuse of it by the agencies that's the problem. BIS are no help, they say that while misuse of the regulations is an offence, companies are at liberty to deal with whoever they want to so in effect no agency is making opting out a condition of offer.

No "possibly" at all, it IS made a condition of being put forwards for consideration, but making it stick in law is utterly impossible. You touted the Opt Out as a great achievement of the PCG (now IPSE) but as soon as it turned out to be a total poison chalice you've tried to apply a positive spin to YOUR (yes with your posting history it's clear you're a leading light in the PCG) total balls up.

Asking about the various options certainly is. Asking "what is opt in vs opt out" though..?

Anyway, just to clarify my position, there are several schools of thought at play:

1. Not opting out means that you have some significant legal and commercial safeguards over payment and handcuff clauses
2. Opting out can act as a lever to get a more commercially advantageous contract including conditions that strengthen your position vis-á-vis IR35
3. Genuine contractors with good contracts have no need of the non-opted out protection: they are in business and intend behaving as such.
4. Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker: we are not agency workers and the Regs do not apply to genuine businesses, so any sensible freelance contractor will simply ignore the whole issue as being irrelevant to them.

Pick whichever you fancy, there are valid counter-arguments to each one. FWIW I'm aligned to the last one.

Viewing it as anything OTHER than 1 is utterly stupid from a business perspective, especially with the long history of failed agencies an clients that like to play silly buggers. It's been said many times (even by you) that Opt Out has no bearing on IR35, now you want to backtrack on that.

It's high time you admit the whole Opt Out thing is a monumental feckup created by the PCG (now IPSE) and help people deal with the fallout of your organisations cockup instead of trying to hide behind feeble obfuscations.

[tractor]

...

Possibly true, and it's why I keep banging a drum that they sit up and take notice and f***ing do something about it. However, it is not the opt out that's the problem, it's the persistent abuse of it by the agencies that's the problem. BIS are no help, they say that while misuse of the regulations is an offence, companies are at liberty to deal with whoever they want to so in effect no agency is making opting out a condition of offer.



Asking about the various options certainly is. Asking "what is opt in vs opt out" though..?

Anyway, just to clarify my position, there are several schools of thought at play:

1. Not opting out means that you have some significant legal and commercial safeguards over payment and handcuff clauses
2. Opting out can act as a lever to get a more commercially advantageous contract including conditions that strengthen your position vis-á-vis IR35
3. Genuine contractors with good contracts have no need of the non-opted out protection: they are in business and intend behaving as such.
4. Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker: we are not agency workers and the Regs do not apply to genuine businesses, so any sensible freelance contractor will simply ignore the whole issue as being irrelevant to them.

Pick whichever you fancy, there are valid counter-arguments to each one. FWIW I'm aligned to the last one.

1. Agreed.
2. Getting a more commercially advantageous contract is more a result of genuine business acumen, nothing to do with the Conduct Regulations and one's opted position. Being inside or out, you have the same opportunity to negotiate your position except wrt payment and handcuff elements. And why, if you don't opt out would you want to give those away?
3. Rubbish.
4. Are you even sure you have that the right way round? You confuse me constantly, let alone someone who is in the dark. Even so, the regs do not apply to those who opt out of them. It has nothing to do with whether your business is genuine. Opting in or out does not make one more, or less sensible. Even courts cannot agree on these matters; I don't even think they have been tested yet, so why you persist in passing yourself off as the all-seeing oracle on this matter and offer your personal opinion as gospel is completely beyond me.

Your assertions that contractors who do not opt out are not sensible and do not run genuine businesses is disingenuous and frankly quite insulting. Especially when you cannot even give accurate advice and you only got one out of four correct in your list above.

For those in this thread that do not know what the Conduct Regulations are, follow this link to find out.

[malvolio]

1. Agreed.
2. Getting a more commercially advantageous contract is more a result of genuine business acumen, nothing to do with the Conduct Regulations and one's opted position. Being inside or out, you have the same opportunity to negotiate your position except wrt payment and handcuff elements. And why, if you don't opt out would you want to give those away?
3. Rubbish.
4. Are you even sure you have that the right way round? You confuse me constantly, let alone someone who is in the dark. Even so, the regs do not apply to those who opt out of them. It has nothing to do with whether your business is genuine. Opting in or out does not make one more, or less sensible. Even courts cannot agree on these matters; I don't even think they have been tested yet, so why you persist in passing yourself off as the all-seeing oracle on this matter and offer your personal opinion as gospel is completely beyond me.

Your assertions that contractors who do not opt out are not sensible and do not run genuine businesses is disingenuous and frankly quite insulting. Especially when you cannot even give accurate advice and you only got one out of four correct in your list above.

For those in this thread that do not know what the Conduct Regulations are, follow this link to find out.

I'm not stating an opinion on the whys and wherefores, I'm merely highlighting the varying views that are out there. I'm really not interested in arguing the point since you aren't going to listen and your continual harping on about how the opt out is a massive cock up isn't helping. It isn't, and it isn't IPSE's fault that it gets abused and BIS do nothing about it.

But if you elect to opt out of something, you are tacitly accepting that whatever it is applies to you in the first place.

[tractor]

...

I'm not stating an opinion on the whys and wherefores, I'm merely highlighting the varying views that are out there. I'm really not interested in arguing the point since you aren't going to listen and your continual harping on about how the opt out is a massive cock up isn't helping. It isn't, and it isn't IPSE's fault that it gets abused and BIS do nothing about it.

But if you elect to opt out of something, you are tacitly accepting that whatever it is applies to you in the first place.

I think you are mixing me up with Eek. I am glad the opt out exists. I am glad the implementation was a cock-up. I get free safeguards. But your logic above doesn't help at all. PCG nd the government have decided that we have to be in one camp or another and cannot ignore it. Even if your head is well and truly buried.

However, given that PCG was instrumental in creating the situation, I do think more support for those that do not opt out should be more forthcoming, most especially because it will be with us for a long time to come.

[TheFaQQer]

Screwed over by agent acting unlawfully

How did you get screwed over?

Invoice for the work and find something else to do.

[TykeMerc]

I'm not stating an opinion on the whys and wherefores, I'm merely highlighting the varying views that are out there. I'm really not interested in arguing the point since you aren't going to listen and your continual harping on about how the opt out is a massive cock up isn't helping. It isn't, and it isn't IPSE's fault that it gets abused and BIS do nothing about it.

But if you elect to opt out of something, you are tacitly accepting that whatever it is applies to you in the first place.

When you consider that for the majority of contractors the reality is that most of their roles will come via the agencies (rightly or wrongly, it makes no difference in practice) the Opt Out question arises all the damn time.
No matter how you try to bury your head in the sand with some mythical idealised business model that 99% of the PCG (now IPSE) members wouldn't recognise.

The actual FACT is that Opting OUT is a dumb business move and the reason we get blackmailed into doing it by numerous agencies is because they were handed the opportunity by your sainted PCG (now IPSE) negotiators.