Agencies CAN refuse to use opt-in contractors

[malvolio]

Now that is a very good question...

It rather depends if your business model includes sub-contracting work to other freelance workers, or uses temporary/part-time resources. Which quite a lot of PCG members do. Hence the need for the opt-out.

But as I have said many times, opting in or out makes little practical difference to anything.

[Wanderer]

I can advise you that it is not illegal under the Employment Agencies Act 1973 or Conduct of Employment Agencies and Employment Businesses Regulations 2003 for an employment agency or employment business to insist that they will only seek work for work-seekers who will agree to opt out of the Conduct Regulations. This is a business decision that employment agencies or employment business might make without contravening the employment agency legislation.

I hope this has clarified the position.

No. It's still as clear as mud.


Cojak, can you send them a reply asking why their response is apparently at odds with Section 32 (13) of the Agency Regulations which states:

Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9)*, to the agency or employment business.

* the "opt out"

[northernladuk]

No. It's still as clear as mud.


Cojak, can you send them a reply asking why their response is apparently at odds with Section 32 (13) of the Agency Regulations which states:

Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement as referred to in paragraph (9)*, to the agency or employment business.

* the "opt out"

Did Cojak, SueEllen or anyone try this? Any news or are we still of the opinion Agencies can insist on Opting-out only?

[SueEllen]

Did Cojak, SueEllen or anyone try this? Any news or are we still of the opinion Agencies can insist on Opting-out only?

Nope didn't go any further.

I would suggest someone else asks as they may get a different person.

[BolshieBastard]

I guess we all know where ambiguity exists, clarity (!) will only be obtained when tested via the Courts.

Until then, those agencies who believe they can insist on the opt out will continue to refuse contractors who want to opt in while those contractors who say they have the right (to opt out) will argue they dont.

[Wanderer]

I guess we all know where ambiguity exists, clarity (!) will only be obtained when tested via the Courts.

Yes, it's clear from what people post here that the opt out is widely abused and it needs to be clarified but I can't that there is much chance of this coming to court. If it went to small claims then it's not going to set a precedent and it's unlikely that any agency or contractor is going to drag a case through a higher court and put their name to a precedent case. Most likely, any case that did get brought would be settled out of court with a confidential settlement to hush it up.

The PCG say it's a contravention of the regulations for agencies insist on an opt out and that it may also be illegal for them to pressure you to do so by threatening not to put forward your CV. They also say the opt out must take place before you the introduction to the client.

The PCG saying this is all well and good but it doesn't mean tulip if agencies continue to ride rough shod over the regulations and feign ignorance. The PCG now need to pressure the likes of the REC and APSCo to clarify their guidance to agencies to make it crystal clear in their guidance to agencies that:

• Agencies must not make implicit or implied threats to not provide work seeking services to contractors who will not opt out of the agency conduct regulations
• Agencies must not offer less favourable contract terms to opted in workers in order to coerce them to opt out
• Agencies must obtain the opt out agreement before the introduction of the worker to the client, including it in the contract is not enough

In the mean time, all we can do is keep reporting incidents like this to the PCG (even if you are not a member) - the contact address is on their advice page.

[Taita]

You may (but probably weren't) wondering why I've been rootling around the Agencies Act over the last few weeks.

It was because a previous thread pointed out that some agencies were stating on their websites that they do not accept applicants who do not opt-out. While I opt-out I didn't think that this stance was legal and so I sent a request to the BIS asking about it.

This is their response.

A business decision then. There you have it...

"Dear Cojak
EMPLOYMENT AGENCIES ACT 1973
Thank you for your email about employment agencies indicating that they will only seek to find work for contractors who have opted out of the Conduct of Employment Agencies or Employment Businesses Regulations 2003.

I can inform you that the Employment Agency Standards (EAS) Inspectorate, based in the Department for Business, Innovation and Skills, is responsible for enforcing the provisions of the Employment Agencies Act 1973 and associated regulations. This legislation requires employment agencies and employment businesses to abide by specified minimum standards of conduct. Further details about the legislation can be obtained from our website, Employment Agency Standards inspectorate | Policies | BIS
I can advise you that it is not illegal under the Employment Agencies Act 1973 or Conduct of Employment Agencies and Employment Businesses Regulations 2003 for an employment agency or employment business to insist that they will only seek work for work-seekers who will agree to opt out of the Conduct Regulations. This is a business decision that employment agencies or employment business might make without contravening the employment agency legislation.
I hope this has clarified the position.
Regards
XX XX
Head of Employment Agency Standards
Department for Business, Innovation and Skills "

How very odd? This rather defeats the raison d'etre of the regulations.

I cannot see how the Regulations that are specifically contravened by any agency requiring a worker to opt out are not contravened by an agency refusing to act for workers who want to opt in........

[malvolio]

ACtually I'm pushing something that may clarify. One of our number has been refused payment by the agency on the grounds that they haven't been paid, but as far as I can reasonably tell he is opted in by default. He needs to follow this through with EASI first but if that goes nowhere, or the opting status remains unclear, or he is opted in so making the agency wrong, I'll push to take it to court.

Lots of things can conspire to stop this happening of course, but if we don't try...

[Wanderer]

I'll push to take it to court. Lots of things can conspire to stop this happening of course, but if we don't try...

That could definitely be an interesting case if it ever gets to court. What's the bet that they will offer an out of court settlement with a gagging clause and no admission of liability so the whole thing quietly disappears though....

[SueEllen]

That could definitely be an interesting case if it ever gets to court. What's the bet that they will offer an out of court settlement with a gagging clause and no admission of liability so the whole thing quietly disappears though....

They probably won't do that.

They will likely pay up the day before the court hearing as they have finally paid to talk to a solicitor.

Lots of businesses including agencies won't use a solicitor unless they have to thinking it saves them money.