Haven't been paid as client hasn't paid agency...how is that my problem!

[malvolio]

If the opt out hasn't been done properly, then the OP is opted in, so should be protected by the regulations. That makes it quite a strong weapon from the contractors perspective - they have the statutory protection.

I'd also disagree with your presumption that contract trumps statute, and would suggest that if the OP was opted into the regulations (which is the most likely situation, given the hassle of getting an opt out done properly), then the agency wouldn't be able to rely on the contract as a defence when there is a statutory protection in place.

You can't separate the two.

It needs to be tested in court properly, but the contract is supposed to define the terms of the engagement for both parties. If it disagrees with statutory protection but it has been mutually agreed that such protection can be disregarded, it makes for an interesting argument. We take exactly the same approach with the WTD, for example, by agreeing that we do not wish it to apply.

Never forget the Regs are drafted for vulnerable workers, not B2B contracts, and the payment terms are directed at agency employees, not suppliers. This is not IR35, contract law has been long established. I'm happy to be proved wrong on this, but the risk that I'm not needs to be stated.

[tractor]

...

You can't separate the two.

It needs to be tested in court properly, but the contract is supposed to define the terms of the engagement for both parties. If it disagrees with statutory protection but it has been mutually agreed that such protection can be disregarded, it makes for an interesting argument. We take exactly the same approach with the WTD, for example, by agreeing that we do not wish it to apply.

Never forget the Regs are drafted for vulnerable workers, not B2B contracts, and the payment terms are directed at agency employees, not suppliers. This is not IR35, contract law has been long established. I'm happy to be proved wrong on this, but the risk that I'm not needs to be stated.

Not true.

The Regulations make provision for workers. Vulnerable workers and incorporated workers have special provisions under the Regs.

Any contract term that breaks statute is likely to be considered an Illegal Agreement. I know it hasn't been tested in court. Perhaps I should call the PCG Legal help line and ask? Surely this is a simple case of legal precedence (not to be confused with precedent).

[strawberrysmoothie]

thanks for the replies. Lots of great information (and a much needed cold water thrown in the face when necessary). I've been sick for the last few years and working to getting my business account back on track as my reserves have been depleted.

I spoke to b&c about this and I looked at my contract it says i've 'opted out' which is good for ir35 but doesn't guarantee payment weather the agency is 'paid or not'.

b&c did say that if I had not opted out it most likely I would not have been offered the contract. However, b&c did say I would been offered to opt in/out in the initial conversation with the agency


The agency, myself and the client all have had a good relationship so far, and I've been extended so I expect this will be resolved soon. I also have a contact in accounts (as its a small co) so I might have a chat with them too.

[tractor]

...

thanks for the replies. Lots of great information (and a much needed cold water thrown in the face when necessary). I've been sick for the last few years and working to getting my business account back on track as my reserves have been depleted.

I spoke to b&c about this and I looked at my contract it says i've 'opted out' which is good for ir35 but doesn't guarantee payment weather the agency is 'paid or not'.

b&c did say that if I had not opted out it most likely I would not have been offered the contract. However, b&c did say I would been offered to opt in/out in the initial conversation with the agency


The agency, myself and the client all have had a good relationship so far, and I've been extended so I expect this will be resolved soon. I also have a contact in accounts (as its a small co) so I might have a chat with them too.

You seem to be a little unsure of whether you have opted out or not. Just because your contract says you have does not mean that it is so. You need to check whether you signed the Opt Out form prescribed by the legislation BEFORE your first introduction to the client. If you did not, you are not opted out and the Regulations apply.

Regardless of the outcome of this issue, you really should confirm your position with regard to the Regs for future reference.

Agency Conduct Regulations

[strawberrysmoothie]

You seem to be a little unsure of whether you have opted out or not. Just because your contract says you have does not mean that it is so. You need to check whether you signed the Opt Out form prescribed by the legislation BEFORE your first introduction to the client. If you did not, you are not opted out and the Regulations apply.

Regardless of the outcome of this issue, you really should confirm your position with regard to the Regs for future reference.

Agency Conduct Regulations

ok I will check this out

[TheFaQQer]

I spoke to b&c about this and I looked at my contract it says i've 'opted out' which is good for ir35 but doesn't guarantee payment weather the agency is 'paid or not'.

That's not true - there is no impact on IR35 of opting in or out of the agency regulations.

b&c did say that if I had not opted out it most likely I would not have been offered the contract.

I'd be interested to know where they got that from, unless they also work for the agency and know how they operate.

However, b&c did say I would been offered to opt in/out in the initial conversation with the agency

That is how it should work in an ideal world. In reality, it almost never works that way, though. For a firm of lawyers to tell you how something happened, unless they were party to the conversation, is worrying. I can probably count on two fingers (certainly one hand) the number of agents who have mentioned opt out status in the initial conversation, so to suggest that this would have happened seems frighteningly naive.

[tractor]

...

That's not true - there is no impact on IR35 of opting in or out of the agency regulations.


I'd be interested to know where they got that from, unless they also work for the agency and know how they operate.


That is how it should work in an ideal world. In reality, it almost never works that way, though. For a firm of lawyers to tell you how something happened, unless they were party to the conversation, is worrying. I can probably count on two fingers (certainly one hand) the number of agents who have mentioned opt out status in the initial conversation, so to suggest that this would have happened seems frighteningly naive.

Agree with all of that but to be fair I suspect that B & C were simply answering the questions put to them by the OP and would not have investigated it thoroughly.

[SarahL2012]

Do you know who the accounts payable team are in the company? If so, have a quiet chat to find out why they haven't paid the agency (they might be more sympathetic if they know you are getting paid as a result). If you / the agency haven't had any problems so far then it may be that authorised signatories are all on holiday.

[ASB]

Mal,

“The contract must be construed so as to give effect to the intention of Parliament rather than to defect it.* If that cannot be achieved by way of construction then the offending clause must be struck down.”

I can find the quote. But not the case.

So statute trumps. Simples. But......

it will likely depend the individual case.

from a simplistic point of view if one can simply defeat statute by insertion of a contractual clause then, in extremis, statute becomes irrelevant.

I accept, however, that in b2b type transactions the negotiating parties are generally considered to be acting from a position of understanding consequences of what they agree. Thus less protection is generally afforded.

[strawberrysmoothie]

Do you know who the accounts payable team are in the company? If so, have a quiet chat to find out why they haven't paid the agency (they might be more sympathetic if they know you are getting paid as a result). If you / the agency haven't had any problems so far then it may be that authorised signatories are all on holiday.

good idea. I actually know 3 or 4 individuals I could speak privately to.