First job, first contract, a bit confused...

[Wanderer]

Cojak posted a link stating it is not illegal for an agency to dictate that they will only deal with Opted Out contractors. It is a business choice and they don't want to deal with the extra responsibilities that come with an opted in contract.

Have a read of this from the PCG :

PCG would like to emphasise that it is a contravention of the Act for any agency to require you to opt out of the Agency Regulations.

It may also be illegal for them to pressure you to do so by threatening not to put forward your CV. Should any members find themselves being required to opt out of the Agency Regulations, they should inform PCG via email at agencyregs@pcg.org.uk.

[northernladuk]

The legislation was introduced specifically to protect people like this. The OP is correct to not want to opt out of it.

IR35 is irrelevant because this is a contract via an umbrella.

But does the OP know this? Surely they should understand that before asking questions about setting up a LTD.

More than one or two people - do a search(!), there are lots of people who have found themselves bitten on the bum by some contract term which would not have been an issue had they refused to opt out.

versus that thousands that post on here and many more that don't and have never had a problem.

Well, you are presuming that the rate is rubbish (which it may or may not be) but I think we need to stand together and show some solidarity with our fellow contractors. Yes, even the noobie ones - lest we forget that we were all noobies once too!

More like an informed presumption that it is. We have all seen the rates on the job boards and in discussions so it is hardly news.

After touching this personally I just think there are bigger things to stand up against now. Fighting agents over it when they really don't know any better is thrashing a dead horse IMO. There has to be a better route.

[northernladuk]

Have a read of this from the PCG :

PCG would like to emphasise that it is a contravention of the Act for any agency to require you to opt out of the Agency Regulations.

It may also be illegal for them to pressure you to do so by threatening not to put forward your CV. Should any members find themselves being required to opt out of the Agency Regulations, they should inform PCG via email at agencyregs@pcg.org.uk.

Which Cojak has proved it isn't.

Required opt out to or chose not to do business with you if you are not opted out. It is a very very thin and very grey line. No way that will stand up in court.

It's down to the individual words in a mail. They are not threatening not to put you forward, they are just saying they won't do business with you if you are not opted out, which is allowed. Both end up with the same result.

[Wanderer]

Which Cojak has proved it isn't.

Cojak got an opinion from the BER just as I have an opinion from the PCG. Neither of them "prove" anything until it's tested in court. As we know, it's become a moot point because no agency will let it get to court.

Required opt out to or chose not to do business with you if you are not opted out. It is a very very thin and very grey line. No way that will stand up in court.

Can you have a read of section 32(13) of the legislation and tell me what you think it means because it it sounds pretty clear to me.

All my agencies so far have caved in and accepted I'm not opting out. At some time in the future I will no doubt find myself in the position of being given a "take it or leave it" ultimatum from the agency and I will pick a fight with them on point of principle because I can be an angry little bastard at times.

Until I get to put a contract offer on the line with this, I guess we shall have to agree to differ on this one, sir.

[SueEllen]

Cojak got an opinion from the BER just as I have an opinion from the PCG. Neither of them "prove" anything until it's tested in court. As we know, it's become a moot point because no agency will let it get to court.

And I got the opposite opinion to Cojak from the same people so this is pointless arguing.

If the only things that are worrying Tuarig are:
1. The restraint of Trade clause, and,
2. The lack of notice period.
I suggest s/he does a search for them on these forums.

[Taurig]

Thanks for all the help and advice, I didn't expect it to lead to a heated discussion! I have taken the step of getting some legal advice over this contract, and phoned the client first thing to explain the situation. I am not going to sign the current contract that has me listed as a Ltd company, and still have reservations about signing anything that is opted out with a 12 month restraint of trade clause, along with a few other issues. I will post back if there are any further developments.

[Taurig]

Just a quick update, phoned the agency to tell them I have been advised by an employment solicitor not to sign an agreement that a) has me down as a limited company rather than under an umbrella company and b) is opted out. Funnily enough, the agency were quick to move on this and I got passed through to the legal team. The guy there said that opting out has already been agreed with the client, all the contractors they send there are opt out, and they will need to phone them as the client may not be happy about it. I've told them to go ahead, but am wondering if I am doing the right thing? I don't see how me opting in has any substantial effect on the client? Are they trying to call my bluff or am I barking up the wrong tree?

[northernladuk]

Firstly 12 months is unenforceable... I didn't see 12 months mentioned before so maybe my bad...So if that is what they are trying to do then your home free. 12 months breaches your human right to work so cannot be enforced. 6 months maybe but not 12.

So it doesn't matter what you do regard opt in and opt out now, the restriction of trade is invalid.

I don't think the agent is calling your bluff. He is told to opt out only, he knows no better and probably doesn't have a clue about any of what we spoke about so has to go to his legal team. When I got in a fight with an agent this is exactly what they did to me. The legal team made it clear to me to progress I had to opt out, they were not willing to progress. I am sure bringing a solicitor might have made a difference but I am also sure way before I got anything sorted I would have lost the gig. What's worth it, losing a gig after spending money on a solicitor or signing......

[Wanderer]

The guy there said that opting out has already been agreed with the client, all the contractors they send there are opt out, and they will need to phone them as the client may not be happy about it.

And what does the client say with regards to the opt out? I say again that the agency are probably bamboozling the client into thinking this is about the Agency Workers Regulations (which the client will probably want you to work outside) whereas this "opt out" refers to the Agency Conduct Regulations which the client would NOT have you opt out of if they knew what they were doing.

The agency are happy to confuse the client about this point because it suits their agenda.

I don't see how me opting in has any substantial effect on the client?

You are correct, staying opted in has no negative impact on the client whatsoever.

The Agency Conduct Regulations limits the "temp to perm" fee that the client would have to pay the agency if they took you on as a permie. If you opt out then the agency can charge the client a huge fee if you ever go permie and they can also charge huge fees if the client wants you to work through a different agency or return to the client within 12 months. Not signing the opt out limits these fees and restrictions, as you have observed.

Bottom line is that the agency are trying to bulltulip both you and the client because it suits their purposes. Is the agency a member of the REC?

[Wanderer]

The legal team made it clear to me to progress I had to opt out, they were not willing to progress.

Did they put that in writing? Oh. They didn't put that in writing, did they. How did I know that.

If you are a PCG member, perhaps you would like to notify the PCG with the address agencyregs at pcg org uk and see what they have to say about it because they make it very clear that their opinion is that this is illegal.