Pending contract offer but must opt out and accept withholding day rate

[NigelJK]

As we're on yet another opt thread let's some terms straight.

There is NO 'opt in' - this is agency speak for 'we don't like the regulations'.
Unless the agency tell you implicitly that this contract is only 'opt out' BEFORE telling you who the client is and long before you are 'interviewed' can they make it stick. Any deviation from this and you are NOT opt'ed out. The issue is they have paid legal advisor's to scare you and the end client.

The regulations are there to help protect you, and yes they're not normally applied to our 'businesses'. However they are a gatehouse for the Agency to slip a few naughties into your contract with them. I honestly thought at the time of the regulations going live that the worst excesses of the agencies had been curbed, but alas they haven't been touched one iota as they have the magic 'opt out' wand.

The only clause which makes any sense for the agencies to fight that hard over is the 'hand cuff' clause. To them it's their bread and butter, to you it is a killer for the prospects of building a proper business relationship with the end client. Regulation guidelines for the clause is 8 weeks, but it should be no more than 12.

[BlasterBates]

You are quite right of course!

Then please take what I said as a possible defence against "the Conduct Regulations are an indicator of control" argument, which gets a lot of press.

If you want terms and conditions, get them written in the contract not have a contract which you disagree with but you assume you can sue using legislation which is specifically targeted at employees, with the term "employment" sprinkled liberally all over it.

I think you would have a pretty hard time in an IR35 case if you successfully did manage to sue an agency using this legislation.

[Sympatico]

If you want terms and conditions, get them written in the contract not have a contract which you disagree with but you assume you can sue using legislation which is specifically targeted at employees.... I think you would have a pretty hard time in an IR35 case if you successfully did manage to sue an agency using this legislation

Of course you don't go into a contract looking to sue, that would be very stupid... but you may decide to sue for an existing case...

As Sue Ellen says about our argument regarding the Conduct Regulations implying employment

... Until there is a case in a higher court that is ruled on then none of what anyone thinks or says is legally binding. This doesn't matter whether you are a lay person, solicitor, QC or judge.

That also applies to HMRC.

Also if I had, as you suggest, successfully sued an agency, on the grounds that the Conduct Regs do cover proper business 2 business relationships, then how can that be an IR35 pointer.




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