Woes Around Opt-Out and Payment

[MrMarkyMark]

My understanding FWIW.

Meeting the client prior to signing any paperwork is key, then you are automatically opted in.
Signing an opt out contract, in itself, does not mean you have opted out.
You have to physically sign a declaration or send a letter to opt out later on in a contract.

Debates are around as to its effect, or null effect, on the IR35 status of that contract.

[Pondlife]

My understanding FWIW.

Meeting the client prior to signing any paperwork is key, then you are automatically opted in.
Signing an opt out contract, in itself, does not mean you have opted out.
You have to physically sign a declaration or send a letter to opt out later on in a contract.

Debates are around as to its effect, or null effect, on the IR35 status of that contract.

I think it largely comes down to the definition of meeting or the point of introduction. Agencies will argue that it refers to the point you go on site. Others may argue it's the point you first speak to anyone from client co eg an interview. Until it goes through the courts it's all a matter of opinion. Just my tuppence on it.

[malvolio]

The only way to be absolutely certain is to send an Opt Out letter with the application for the role, before anything else has happened (assuming you want to opt out of course) and then totally ignoring anything else you may be sent after that point. Any other option almost certainly means you not opted out since you can't opt in - you are in by default. And as I said earlier, you have to be careful about what's in the contract. If you agree to the agency pay-when-paid clause then it will apply regardless unless it is stated to be dependent on your status re the opt out.

And as young Pondlife says, until it goes to court it will never be fixed. Which is why I keep asking for a suitable vict... hero to step up.

The agencies only push for the opt out because it saves them time, money and risk incidentally, and I have it on good authority that a major one did an audit on their contracts a while back and found virtually all of them were handled wrongly

[eek]

The agencies only push for the opt out because it saves them time, money and risk incidentally, and I have it on good authority that a major one did an audit on their contracts a while back and found virtually all of them were handled wrongly

Which is why I think it would actually be a very hard battle to actual fight. You would need to find a counter party willing and able to fight whilst their legal insurance screams pay the amount owed its far less than the £00,000s fighting this will cost...

As others have said IPSe need to pick their battles carefully. I think were they to fight this they would continually win at the first huddle until and unless agencies felt they had to have a definitive answer. And I reckon they like the ambiguity.

[missinggreenfields]

The only way to be absolutely certain is to send an Opt Out letter with the application for the role, before anything else has happened (assuming you want to opt out of course) and then totally ignoring anything else you may be sent after that point. Any other option almost certainly means you not opted out since you can't opt in - you are in by default. And as I said earlier, you have to be careful about what's in the contract. If you agree to the agency pay-when-paid clause then it will apply regardless unless it is stated to be dependent on your status re the opt out.

And as young Pondlife says, until it goes to court it will never be fixed. Which is why I keep asking for a suitable vict... hero to step up.

The agencies only push for the opt out because it saves them time, money and risk incidentally, and I have it on good authority that a major one did an audit on their contracts a while back and found virtually all of them were handled wrongly

Did a suitable victim not step up in BIS v CNL?

[MrMarkyMark]

Really good stuff there guys, cheers

[malvolio]

Did a suitable victim not step up in BIS v CNL?

Not really. That was about Direction, the fact that the agency cocked up the Opt Out, meaning he was opted in anyway, is not that relevant. What we want to prove is the precise point in the process of hiring that the opt out is valid.

In other words, we need a case where the agency is denying something on the basis that the contractor is opted out when he (and we) believe he isn't.

[malvolio]

Which is why I think it would actually be a very hard battle to actual fight. You would need to find a counter party willing and able to fight whilst their legal insurance screams pay the amount owed its far less than the £00,000s fighting this will cost...

As others have said IPSe need to pick their battles carefully. I think were they to fight this they would continually win at the first huddle until and unless agencies felt they had to have a definitive answer. And I reckon they like the ambiguity.

IPSE will fight any case that matters to the wider community. The money is there, once there is a viable case to be fought.

[SueEllen]

Which is why I think it would actually be a very hard battle to actual fight. You would need to find a counter party willing and able to fight whilst their legal insurance screams pay the amount owed its far less than the £00,000s fighting this will cost...

As others have said IPSe need to pick their battles carefully. I think were they to fight this they would continually win at the first huddle until and unless agencies felt they had to have a definitive answer. And I reckon they like the ambiguity.

Even if the agency was stupid enough to go to court and see it through if the agency lost I doubt they would appeal so then it wouldn't set a legal precedent.

There was some agent on here last year ranting how the opt-out done the agency's way was valid when his case had nothing to do with it.

[missinggreenfields]

Not really. That was about Direction, the fact that the agency cocked up the Opt Out, meaning he was opted in anyway, is not that relevant. What we want to prove is the precise point in the process of hiring that the opt out is valid.

In other words, we need a case where the agency is denying something on the basis that the contractor is opted out when he (and we) believe he isn't.

IIRC, the case was won by the agency proving that there were no regulations to opt out of anyway. Nobody cocked up the opt out - the regulations didn't apply so there was nothing for the contractor to opt into / out of.