Can an Agency refuse to let me opt in?

[MattH1]

Hi all,

Due to one of the links in the chain between me and the end client for a new role being a fledgling start-up consultancy I would like to opt-in to the regs so I have a level of payment protection. I have considered other aspects of how I am working and don't feel this is going to upset me on IR35.

The agency (who's client is the consultancy) has refused point blank to let me opt in, says in the last ten years they have never had anyone ask, and "don't do" opt-in contracts. I don't want to upset a new relationship here, but is a recruiting agency actually allowed to say no?

Many thanks,
Matt.

[NotAllThere]

When an agency says about anything

... they have never had anyone ask...

They're lying.

[northernladyuk]

Worth a read of the Sticky, and then ask any specific question not answered in that thread.

http://forums.contractoruk.com/busin...-2003-act.html

[Invisiblehand]

If you have an option to opt a particular way then by definition they are giving you a choice.

[northernladuk]

Cojak and SueEllen both asked about this and oddly both got a different answer. The broad consensus however is that they can decide who to do business with. If they don't want to deal with Opt In contractors they don't have to.

[TheCyclingProgrammer]

“They’ve never had anyone ask...”

I’m pretty sure the exact same thing was said to me the one time I did some agency work 7 years ago. When I pushed it I even had somebody from their legal department ring me for a friendly chat to discuss the benefits of opting out and how good it would be for my IR35 status. They were desperate for me to opt out. I can’t remember if I gave in eventually but I’ve only worked for an agency once since.

You can’t be prevented from opting in as there’s no such thing - you’re “in” by default. You can only opt out and agencies should not use your opt out status as a condition for offering the work.

They can however shaft you with a really unfriendly contract in IR35 times.

[eek]

Cojak and SueEllen both asked about this and oddly both got a different answer. The broad consensus however is that they can decide who to do business with. If they don't want to deal with Opt In contractors they don't have to.

It's really a question of how much risk you are willing to take - I would be emphasising the issue to the agency stating what terms you find acceptable - is it weekly billing on weekly terms or monthly billing on 30 day terms - one is far more acceptable than the other...

[SueEllen]

Regardless of your opt-out status it is up to you to negotiate how you want to be paid. The agency can go bust even if you aren't opted-out.

So credit check the agency and try to get weekly billing.

[BlasterBates]

Forget the opt in what you want is a clause in the contract that gives you the payment protection you want. If they won't give it you and feel the risk isn't worth it then turn down the contract.

If you are not under control and supervision of the client then the regulations don't apply, which is the case almost all contractors operating outside IR35.

[TheFaQQer]

Hi all,

Due to one of the links in the chain between me and the end client for a new role being a fledgling start-up consultancy I would like to opt-in to the regs so I have a level of payment protection. I have considered other aspects of how I am working and don't feel this is going to upset me on IR35.

The agency (who's client is the consultancy) has refused point blank to let me opt in, says in the last ten years they have never had anyone ask, and "don't do" opt-in contracts. I don't want to upset a new relationship here, but is a recruiting agency actually allowed to say no?

Many thanks,
Matt.

Technically, I don't think they are allowed to say no. But they can make the contract so awful that you wouldn't accept it (which is what one major agency tried with me - personally liable, named individual, inside IR35, poor payment terms etc).

But they are free to do business on their terms and you are free to negotiate those - look at the protections that you are after and see if you can get those included in the opt out contract anyway. If you are worried about agency failure, then you could look at short payment terms plus making sure you have appropriate insurance cover to provide you with some money in that event.