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

[pauly]

Hi, just received a 6 months offer with a Clientco through one of their large PSL Agencies.

I am in the process of signing-up for a start date after checks & referencing.

I am deciding to go either Ltd company or Umbrella.

If I go Umbrella - the agency say that they are only willing to send the completed contracts to the umbrella company (who I guess can then forward to me). If I go Ltd contract, then the agency is saying they can forward the contract directly to me. Does this make any sense to anyone?

Have already listened to the agency giving me their speech on Opting out... "Blah, blah, if you opt-out then you can earn more money as you are not restricted in the number of hours you can work, you do want to earn more money?"

I think this agency has different 'Opt-in' and 'Opt-out' contracts. The Opt-out contract contains terms which do not protect the contractor (e.g. if you don't invoice by a certain time, the agency does not have to pay you).

The Opt-in contract is generally more protective (I don't want to get in the whole IR35 discussion at this time as I know it is a consideration if ever investigated).

I have a feeling the Agency is being dodgy and non-transparent with contracts.

It would like to get the 'Ltd Co' and 'Umbrella' contract versions as well as the 'Opt-in' and 'Opt-out' versions and see what the differences are to make the best call.

The upfront signing is key to the contract over the long term.

Anyone had any experience of Agency tactics and the best way to overcome?

[SueEllen]

Don't mention the opt-out.

Get the limited contract and get it reviewed.

If you use a solicitor to do the review they will remove all the opt-out clauses for you.

Btw if you use an umbrella you are legally an employee of the umbrella. No employer shows their employee their agreements with their clients.

[Wanderer]

It would like to get the 'Ltd Co' and 'Umbrella' contract versions as well as the 'Opt-in' and 'Opt-out' versions and see what the differences are to make the best call.

I just ask for a copy of their standard contract template so I can review the terms of business. Mostly they are happy to send you one, if they start dicking about then you know they are trying to hide something nasty. They can't force you to opt out if you don't want to but they may try to coerce you by offering crap contract terms if you don't (though the legality of this is debatable).

I've seen some agencies who have the same contract for opt-in or opt-out and it just marks which sections don't apply (restraint of trade, limits on getting paid if the client doesn't pay, etc) if you don't opt out.

[pauly]

Don't mention the opt-out.

Get the limited contract and get it reviewed. If you use a solicitor to do the review they will remove all the opt-out clauses for you. Btw if you use an umbrella you are legally an employee of the umbrella. No employer shows their employee their agreements with their clients.

Meaning the Umbrella could be discussing stuff with the agent behind my back?

I understand that Umbrellas auto qualify you for protection under AWR whereas Ltd Co's protection is debatable (depends on working practices).

Hence I was considering the Umbrella approach.

[Wanderer]

I understand that Umbrellas auto qualify you for protection under AWR whereas Ltd Co's protection is debatable (depends on working practices).

Hence I was considering the Umbrella approach.

If the contract has a chance of being outside IR35 then you are much better off to go LTD and stay outside the scope of the AWR.

If you are going umbrella then get them to arrange the working practices to be inside the AWR and take the benefits.

[northernladuk]

If the contract has a chance of being outside IR35 then you are much better off to go LTD and stay outside the scope of the AWR.

If you are going umbrella then get them to arrange the working practices to be inside the AWR and take the benefits.

FTFY for the benefit of the OP to understand

[LisaContractorUmbrella]

Meaning the Umbrella could be discussing stuff with the agent behind my back?

I understand that Umbrellas auto qualify you for protection under AWR whereas Ltd Co's protection is debatable (depends on working practices).

Hence I was considering the Umbrella approach.

The reason that the contract is sent to the umbrella company is because of the contractual relationship involved - a business to business contract is put in place between the umbrella company and the recruitment agency and you are then employed by the umbrella company under an over-arching contract of employment. Working with an umbrella you will fall under the scope of the AWR but you may also if you have a Ltd Co but are considered a disguised employee i.e. within IR35

[pauly]

If the contract has a chance of being outside IR35 then you are much better off to go LTD and stay outside the scope of the AWR. If you are going umbrella then get them to arrange the working practices to be inside the AWR and take the benefits.

Thanks for the reply.

As I basically understand it to-date:

With a Umbrella...
- Nothing to worry about with IR35 as you are employed in anycase
- More able to claim AWR rights from Clientco
- If your working practices are not employee, AWR protection could be scuppered

With a Ltd Co...
- Possible IR35 "disguised employee" issues if investigated by HMRC
- Less able to claim AWR protection if you are concluded as a business
- IR35 issues and thus AWR protection dependent on working practices: http://www.hmrc.gov.uk/ir35/guidance.pdf

Now, consider you are a Ltd Co contractor working on-site like an employee (a lot of people are and many Corporate Clientco expect you to come into the office and work under their direction like an employee)...

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).

Thus, it makes sense to be Ltd Co - be able to argue AWR protection if your working practices are employee and (baring any investigations) to be a business for HMRC purposes?

Capiche??

[northernladuk]

Capiche??

Not really, can you bold a couple more items to make it clearer to me please?

[malvolio]

Why would a contractor want AWR Protection (whatever you believe it to be)? And do you like 5 month contracts or something?

I think you need to do some better research.