Screwed over by agent acting unlawfully

[malvolio]

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.

Yes, it's important for some; basically the people that would tend to use this forum. The point is that there are around half a million contractors that may use agencies and about 25% of them actually do go via agencies for all their work. Around 4 million more that don't. The world is bigger than you think.

And I would remind you that is was a number of IPSE members - not IPSE itself - that asked for the opt out to be made available when they were first announced since it damaged their business if they had to comply with the Agency Regulations. That's the problem with member-led organisations, they tend to do what their members ask.

[Lewis]

Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker:

Is that not the wrong way round?

[tractor]

...

Is that not the wrong way round?

No, I thought that too but he is using some obscure and obtuse logic that infers that if you ask to be excused from something, you considered that it applied to you in the first place. This is why the conduct regs and opting out is a nonsense in itself.

It is a typically tulip implementation of leglislation that used a scattergun approach when a sniper rifle was required.

At implementation, the government should have legislated that is is illegal for a client company to use an agency to source limited company resources

[Lewis]

No, I thought that too but he is using some obscure and obtuse logic that infers that if you ask to be excused from something, you considered that it applied to you in the first place. This is why the conduct regs and opting out is a nonsense in itself.

It is a typically tulip implementation of leglislation that used a scattergun approach when a sniper rifle was required.

At implementation, the government should have legislated that is is illegal for a client company to use an agency to source limited company resources

Ok, I see, have never heard that argument before. I've read many times that an opt out is invalid if done after you've been introduced to the client, which has always been the case for me, so I've always assumed my opt out is invalid anyway.

Following the argument above, does this means that if you believe you are out of scope rather than opting out you should simply do nothing? i.e. refuse to sign the opt out form that every agent sends nowadays on the grounds that you don't believe you are in scope in the first place.

Has anyone tried that with an agency? Surely if you want to be out of scope/opted out (is there a practical difference between the two?) then explicitly opting out is a clearer way of doing it?

I've always opted out because that was the advice (at the time I asked) of QDOS; the argument being it would help marginally in an IR35 case. I've always trusted their advice.

[malvolio]

Ok, I see, have never heard that argument before. I've read many times that an opt out is invalid if done after you've been introduced to the client, which has always been the case for me, so I've always assumed my opt out is invalid anyway.

It's not my argument, although I do understand it. The underlying point is that the Regs apply to a worker engaged by an agency and do not apply to a genuine business. Since I consider myself to own the latter, the Regs have no place in my world.

Following the argument above, does this means that if you believe you are out of scope rather than opting out you should simply do nothing? i.e. refuse to sign the opt out form that every agent sends nowadays on the grounds that you don't believe you are in scope in the first place.

Has anyone tried that with an agency? Surely if you want to be out of scope/opted out (is there a practical difference between the two?) then explicitly opting out is a clearer way of doing it?

Opting out is easy, if you want to do so. When you first contact the agency with your CV you include a separate written statement that both you and YourCo do not wish the Agency Regulations' to apply to any engagement between YourCo and that Agency. End of: you are correctly out of the Regulations. It's the letters sent by the agency after the event that have no value.

Alternatively simply ignore the whole issue. You may well not be opted out, but since you will not be taking any benefit from them, who cares?

I've always opted out because that was the advice (at the time I asked) of QDOS; the argument being it would help marginally in an IR35 case. I've always trusted their advice.

So it's not just IPSE saying that then...

[tractor]

...

Ok, I see, have never heard that argument before. I've read many times that an opt out is invalid if done after you've been introduced to the client, which has always been the case for me, so I've always assumed my opt out is invalid anyway.

Following the argument above, does this means that if you believe you are out of scope rather than opting out you should simply do nothing? i.e. refuse to sign the opt out form that every agent sends nowadays on the grounds that you don't believe you are in scope in the first place.

Has anyone tried that with an agency? Surely if you want to be out of scope/opted out (is there a practical difference between the two?) then explicitly opting out is a clearer way of doing it?

I've always opted out because that was the advice (at the time I asked) of QDOS; the argument being it would help marginally in an IR35 case. I've always trusted their advice.

Their advice is not necessarily wrong but it has not yet been tested at court so it is and opinion only and the 'would' should be changed to 'may' or 'could'.

You cannot ignore the regulations. If you do not opt out (in accordance with the requirements of the regs aka properly), you are covered and governed by their provisions.

No, it is not just IPSE that are saying it. But IPSE and others use the word 'would' without any justification. If there is justification, refer to the case law otherwise change the 'would' in your advice.

[Lewis]

Their advice is not necessarily wrong but it has not yet been tested at court so it is and opinion only and the 'would' should be changed to 'may' or 'could'.

You cannot ignore the regulations. If you do not opt out (in accordance with the requirements of the regs aka properly), you are covered and governed by their provisions.

No, it is not just IPSE that are saying it. But IPSE and others use the word 'would' without any justification. If there is justification, refer to the case law otherwise change the 'would' in your advice.

To be fair to QDOS, they may very well have said 'may' or 'could'. Can't remember exact language, but I remember nothing being absolutely certain.