Opting Out vs IR35

[Peregrine66]

I've recently started a new contract role and after much back and forth with the agent, I've convinced them that that I really do not want to opt out of the agency regulations.

Today I received an email from them, with a revised contract ...

Your status has now changed such that the fundamental principle of these conditions are that you are now considered to be under the direction and control of the client and therefore are considered to be Inside IR35. As such you are considered an Agency Worker and we have provided an Agency Worker contract as the previous contract sent to your limited company is no longer appropriate as this was for limited companies outside of IR35.

<Agent> will inform HMRC in our reporting that your limited company will be responsible for full payment of PAYE and NI contributions.

Furthermore, it is a requirement throughout your contract to provide evidence that you treat all of your income under this contract as Employment Income and provide evidence of payment of tax and National Insurance on your entire Fees.

We all know that this is complete tulip on the part of the agent, but it looks like developing into a complete mess. I plan on refusing to accept the new contract and will continue under the terms of the original one, for as long as that lasts ...

Is there a canonical reference (other than the sticky thread) that I can send to the agent to demonstrate that there really is zero link between opting out and IR35 status.

[Lance]

why not just opt-out?
It makes no difference (unless there's a big fall out), and is probably not an enforceable opt out if they're asking you after you've been offered the contract.

You are at risk of just not getting the gig here, for the sake of being right. Is that a fair trade?

[Peregrine66]

why not just opt-out?
It makes no difference (unless there's a big fall out), and is probably not an enforceable opt out if they're asking you after you've been offered the contract.

You are at risk of just not getting the gig here, for the sake of being right. Is that a fair trade?

I already have the gig - I've been at the client for 6 weeks now ...

[BlackCountryContractor]

I've recently started a new contract role and after much back and forth with the agent, I've convinced them that that I really do not want to opt out of the agency regulations.

Today I received an email from them, with a revised contract ...



We all know that this is complete tulip on the part of the agent, but it looks like developing into a complete mess. I plan on refusing to accept the new contract and will continue under the terms of the original one, for as long as that lasts ...

Is there a canonical reference (other than the sticky thread) that I can send to the agent to demonstrate that there really is zero link between opting out and IR35 status.

You can go to a employment specialist solicitors and get them to write a legal letter informing "potemkin" agency of the error of their ways but still there is nothing stopping the agency from canceling the original contract (giving you notice) and insisting you sign the new one.

[northernladuk]

The problem is there isn't a definitive answer. IR35 is so screwed up there is no way a black and white conclusion can be reached. They've decided on a line and it's going to be very difficult to convince them.

You could send them this article pointing out it's by Roger Sinclair but they probably won't know who he is..

https://www.contractoruk.com/agencie...r_opt_out.html

I must admit I didn't try understand your situation but I'm finding it hard to see it's even valid any more but whatever the situation I most certainly wouldn't be causing this level of fuss over the status. It's so badly handled by both agents and contractors it's very rarely valid and I've yet to see a discussion on here where any situation has change by pointing out your opt in status, even the payment without a timesheet clause. If they don't want to pay you contrary to your status you are going to have to go legal.

[MonkeysUncle]

I already have the gig - I've been at the client for 6 weeks now ...

If you are already working there then the opt out option is void is it not?
You have been introduced to the client?

[Eirikur]

name and shame the agency

[northernladuk]

If you are already working there then the opt out option is void is it not?
You have been introduced to the client?

I read it that he was opted out, most probably incorrectly as agents just don't understand it and he's had to push to get opted in.

I can't help thinking he could have just left the situation with an incorrectly opted out process so he's technically opted in. Clearly the agency aren't used to handling opt in contractors and have had a knee jerk reaction. This isn't uncommon. There were calls it was discrimination to only work with opt in contractors but BiS said it's purely their choice.

Another thing that strikes me is the that agency has extra obligations around on boarding if the contractor is opted in, something the can't have done if the treated them as Opt Out during the process.

Does beg the question why the OP started the gig before getting this sorted.

[Peregrine66]

If you are already working there then the opt out option is void is it not?
You have been introduced to the client?

I agree entirely, but my options now appear to be

• accept the new contract and face being placed within IR35.
• insist on keeping the original contract without signing the opt out, which is likely to just end in it being terminated.
• keep the original contract but sign the opt out, even though it is (probably) legally worthless, but will at least keep the agent happy.

Option 3 looks like causing the least aggravation all around ...

[Peregrine66]

Does beg the question why the OP started the gig before getting this sorted.

I told the agent all along that I wasn't going to opt out, and signed the contract on that basis.

It's only today, 6 weeks in, that they have decided to change track.