A new Gig and am suspecting Agency dodgy dealings with sign-up

[pauly]

Why would a contractor want AWR Protection (whatever you believe it to be)?

Most agencies want contractors out of AWR. One of those is that AWR rights ensure the obligations of agencies and hirers are defined. E.g. An agency has to pay you under AWR even if you don't invoice. Do some research, there is a reason most agencies want you to opt-out.

[LisaContractorUmbrella]

Most agencies want contractors out of AWR. One of those is that AWR rights ensure the obligations of agencies and hirers are defined. E.g. An agency has to pay you under AWR even if you don't invoice. Do some research, there is a reason most agencies want you to opt-out.

You can't opt out of AWR, I think you are referring to the Conduct of Employment Agencies and Employment Businesses legislation - completely different thing altogether. And there is a connection between AWR and IR35

[northernladuk]

Most agencies want contractors out of AWR. One of those is that AWR rights ensure the obligations of agencies and hirers are defined. E.g. An agency has to pay you under AWR even if you don't invoice. Do some research, there is a reason most agencies want you to opt-out.

Load gun, point at foot, FIRE!!!

I think you should take heed of Mal's advice that you ommited from your quote......

[Contreras]

Claiming AWR is likely to be a discussion with the Clientco. IR35 issues are going to be discussions with HMRC. I am unconvinced that anyone is going to be putting the two together. The chances are that you could claim AWR protection if needed with the Clientco hirer by stating you are working like an employee. Practically speaking this would not affect any future IR35 HRMC investigation as they are unlikely to be aware you claimed AWR protection from your Clientco (its two different conversations).

Oh really? You reckon HMRC won't automatically speak to the client in the event of an IR35 investigation?

And no disgruntled permies at ClientCo ready to grass on the "highly paid contractor claiming employee rights"?

Seriously, are you being serious?

There is surely no better way to set yourself up for a FAIL.

[Wanderer]

Claiming AWR is likely to be a discussion with the Clientco. IR35 issues are going to be discussions with HMRC. I am unconvinced that anyone is going to be putting the two together. The chances are that you could claim AWR protection if needed with the Clientco hirer by stating you are working like an employee. Practically speaking this would not affect any future IR35 HRMC investigation as they are unlikely to be aware you claimed AWR protection from your Clientco (its two different conversations).

No, you really aren't getting it pauly. If you think that HMRC won't talk to your client/employer then you are sadly mistaken.

HMRC can and will review your working practices with your client and if you fall within the AWR then you will almost certainly be found to be under IR35 too.

[pauly]

You can't opt out of AWR, I think you are referring to the Conduct of Employment Agencies and Employment Businesses legislation - completely different thing altogether. And there is a connection between AWR and IR35

Thanks. I think I got myself confused. So, at a very high level, I understand…

AWR – Agency Workers Regs to protect Agency workers
Agency Conduct Act – Conduct of Agencies Act to govern employment agencies
IR35 – Laws to prevent contractors claiming company tax benefits when they are working like employees

This is how I see the jigsaw pieces linked together for a Ltd company contractor…

If your are a Ltd company contractor you are generally saying you’re engaged as a business. This posture is what enables you to have tax advantages, however it is not about what you state but more dependent on the contract terms and your working practices in contract.

You may be able claim AWR rights if required to protect yourself when on a contract (i.e. if you are not give equal rights to work opportunities and facilities). However if you are claiming AWR protection, in theory you may be exposed on an IR35 basis as you are implying you are not a separate business. I assert that the AWR rights are a Clientco/Agency discussion and IR35 is HRMC, therefore it is possible to claim AWR rights (if required) without exposing yourself to IR35 investigations. I have not heard of anyone falling foul of this or heard of employees snitching. Ultimately IR35 is about working practices.

There is a theory that if you Opt-in and seek the protections of the Agency Workers Regs (i.e. ensuring you get paid even if the client does not pay the agency, or have less restriction convents) you may be disadvantaging yourself in regard to IR35. I would assert that the IR35 battles are going to be won/lost based on working practices and therefore it makes sense to Opt-in if you want the protections.

Welcome general input on the above.


I have some questions..

Can you change your Opt-out/Opt-in status when renewing a 6 months contact with the same Clientco?

I assume an agency can’t sway you to Opt-in or Opt-out – but a Clientco can say that they only want Opted-out candidates? (Is there any reason Clientco would prefer Opted-out candidates??)

Is an agency correct in persuading you to Opt-out by stating that “Opting-in means you cannot do overtime and get paid for it?”

[Wanderer]

A good post, but I disagree with this point:

However if you are claiming AWR protection, in theory you may be exposed on an IR35 basis as you are implying you are not a separate business. I assert that the AWR rights are a Clientco/Agency discussion and IR35 is HRMC, therefore it is possible to claim AWR rights (if required) without exposing yourself to IR35 investigations. I have not heard of anyone falling foul of this or heard of employees snitching. Ultimately IR35 is about working practices.

Guidance from the BIS on the agency workers regulations states that to be outside the scope of the regulations you need to be in business on your own account (ie, a business to business relationship) and not working under the direction and control of the host organisation.

Both of these are big IR35 pointers and you will have a difficult time proving you are outside IR35 if you fail these two tests.

As for HMRC finding out, what if they ask you, the agency and the client straight up: Is this assignment within the scope of the Agency Workers Regulations? Simple question, answer yes or no. If the answer is yes then it raises a red flag because the AWR tests are almost identical to the IR35 ones.

Can you change your Opt-out/Opt-in status when renewing a 6 months contact with the same Clientco?

If you are opted out then you can withdraw the opt out and it will take effect "when the worker stops working in that position". Exactly what the quoted bit means is unclear but that's what's written in the law.

If the worker didn't opt out before the introduction or supply to the client then there is no possibility for the worker to opt out.

I assume an agency can’t sway you to Opt-in or Opt-out – but a Clientco can say that they only want Opted-out candidates? (Is there any reason Clientco would prefer Opted-out candidates??)

Section 32(13) of the regulations states that agencies cannot refuse to work with you because you won't opt out. The PCG say this.

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 the link on this page.

Is an agency correct in persuading you to Opt-out by stating that “Opting-in means you cannot do overtime and get paid for it?”[/COLOR]

That's a grey area, I would insist that the agency offers equal terms for both opted in and opted out and report them to the REC/PCG/BIS if they refuse.

It's quite clear that the opt out is widely abused by agencies.

There is NO reason why a client would want workers to opt out of the Agency Conduct Regulations because the regulations protect both the worker and the client.

[LisaContractorUmbrella]

Thanks. I think I got myself confused. So, at a very high level, I understand…

AWR – Agency Workers Regs to protect Agency workers
Agency Conduct Act – Conduct of Agencies Act to govern employment agencies
IR35 – Laws to prevent contractors claiming company tax benefits when they are working like employees

This is how I see the jigsaw pieces linked together for a Ltd company contractor…

If your are a Ltd company contractor you are generally saying you’re engaged as a business. This posture is what enables you to have tax advantages, however it is not about what you state but more dependent on the contract terms and your working practices in contract.

You may be able claim AWR rights if required to protect yourself when on a contract (i.e. if you are not give equal rights to work opportunities and facilities). However if you are claiming AWR protection, in theory you may be exposed on an IR35 basis as you are implying you are not a separate business. I assert that the AWR rights are a Clientco/Agency discussion and IR35 is HRMC, therefore it is possible to claim AWR rights (if required) without exposing yourself to IR35 investigations. I have not heard of anyone falling foul of this or heard of employees snitching. Ultimately IR35 is about working practices.

There is a theory that if you Opt-in and seek the protections of the Agency Workers Regs (i.e. ensuring you get paid even if the client does not pay the agency, or have less restriction convents) you may be disadvantaging yourself in regard to IR35. I would assert that the IR35 battles are going to be won/lost based on working practices and therefore it makes sense to Opt-in if you want the protections.

Welcome general input on the above.


I have some questions..

Can you change your Opt-out/Opt-in status when renewing a 6 months contact with the same Clientco?

I assume an agency can’t sway you to Opt-in or Opt-out – but a Clientco can say that they only want Opted-out candidates? (Is there any reason Clientco would prefer Opted-out candidates??)

Is an agency correct in persuading you to Opt-out by stating that “Opting-in means you cannot do overtime and get paid for it?”

Have a look at this thread here http://forums.contractoruk.com/busin...gulations.html especially the post from Wanderer

[pauly]

Thanks. I am sensing that Opting-in to the Agency Regs is for me as IR35 will largely come down to working practices.

Am studying your reply and previous posts...

If the worker didn't opt out before the introduction or supply to the client then there is no possibility for the worker to opt out.

You mentioned in a previous post that: "There is some debate about when the opt out needs to be done. What the legislation says is that the opt out must be done "before the introduction or supply" of the worker. Lots of people say that they take this to mean that opt out is not valid unless it's done before the introduction but it could also be argued that the opt out is valid if it's done after the introduction but before the supply (eg, before you start working). It's a grey area and as far as I know it's never been tested in court.."


I will hopefully be starting a new gig with the Clientco in a couple of weeks. The Agent wanted to assess if I would be an Opt-out candidate prior to submitting my details to the Client for interview. They attempted to persuade me by saying that "I could only get extra overtime pay if I Opted-out". I ummmm'ed and arrrrrr'ed and sounded a bit thick knowing full well they would filter me out if indicated I would Opt-in. The Agency only wanted to submit Opt-out candidates for Clientco interviews. The agency then sent through an interview pack prior to the interview with details of interviewers, locations and times. Also it included their standard Contract T&C's (but the Opt-Out version). I later got offered the work by the Clientco.

I assume sending me these T&C's prior to interview does not provide enough evidence to indicate that I had officially Opted out??

That's a grey area, I would insist that the agency offers equal terms for both opted in and opted out and report them to the REC/PCG/BIS if they refuse.

Good advice, but I am unsure if anyone will do anything and the only loss is to the contractor who could miss out on a lucrative piece of work.

It's quite clear that the opt out is widely abused by agencies. There is NO reason why a client would want workers to opt out of the Agency Conduct Regulations because the regulations protect both the worker and the client.

Wouldn't put it past the Agency PR to brainwash Clientco's lazy permie HR into not taking Opted-in contractors by scaring them with Working Time restrictions "If you recruit this contractor Mr Clientco you can't work him more than 48hrs a week".


Welcome your thoughts on the above key question. It will be instrumental if I can push to stay Opted-in for this work.

[northernladuk]

What is with the bold and blue. If this thread isn't hard enough to follow as it is the colours make it even harder.

A) Lose the colours
B) Listen to what people say and go do more research

You are starting to make a right dick of yourself.

P.s. I think you are confusing Opt in/out. It isn't for the working time directives. Go do some more reading before further embarrassing yourself.