EB regs - no opt out and direct to client

[The Lone Gunman]

Isn't that the same thing as contractors are hired by the client?

See my answer just prior. I had completely missed something.

[oraclesmith]

Did you opt out of EB ? If not, then that clause is illegal and unenforceable, in my opinion. It implies that there can be a 12 month tie-in once you end a 12 month contract, or a 6 month one for a 6 month contract.

There should be no such tie-in in your contract with the EB and only one which replicates the 14week/8 week criteria in the regs for the contract between the EB and the client.

Any EB's here want to comment ?

[Not So Wise]

Clause is invalid if you are opted in
Clause is valid if you are opted out

And to be honest you are most likely opted in, because even though most EB's get contractors to sign an opt out, most do this AFTER they introduced the contractor to the client (normally at the contract exchange stage), thus making the opt out invalid.

[mashetti]

And to be honest you are most likely opted in, because even though most EB's get contractors to sign an opt out, most do this AFTER they introduced the contractor to the client (normally at the contract exchange stage), thus making the opt out invalid.

I was recently given a document by a colleague on the regulations and noticed a slight variation on this rule that is always mentioned i.e. that the opt out is invalid if you have already been introduced to the client.

It said something along the lines of "you must opt out before being introduced to the client OR before being supplied to the client".

Now in my world of logic this OR that is tacked on the end would catch most people assuming it means before you actually get on site for the client. Anyone else seen a similar thing? I have the doc at work so will check exact wording and verify source...

[The Lone Gunman]

Regulation 32(9) provides that limited companies and those persons whose services they supply can choose not to be covered by the provisions of these Regulations. If they do exercise the choice not to be covered by the Regulations, then both the limited company and the worker to be supplied must give notice, to the employment agency or employment business that this is the case, before they are either introduced or supplied to a hirer.

Taken from the regs. You can opt out after intro, but not after supply. You still have to opt out though. If you have not opted out and you started the contract then you are opted in by default.

[edit]Not sure if the OR isn't there because of the difference between an EB and an agency. Anyone?

[Not So Wise]

"before they are either introduced or supplied to a hirer."

"You can opt out after intro, but not after supply."

I take that "or" to be inclusive, when either one has occurred, introduced or supplied there can be no opt out.

While it might sound illogical that supply can happen before introduction it does happen (been on contracts with no interview or contact with client till the first day I arrive on site), it is even more likely when you realise that both the contractor company and and the contractor have to opt out, aka contractor company gets introduced and contractor working under that company who had no part in the negotiations does the work, aka gets supplied.

Basically unless the agency gets you to sign the opt out (for yourself and your company) before introduction to client (interview/sales pitch), you are opted in regardless of what you sign

[oraclesmith]

....which means....back to my original point..... that generally speaking the ever-so popular tie-in clauses seem to be put in by EB's hoping that their contractors don't know the law. I wonder how many people are duped by it and how much money the EB's make from falsely claiming loss of business when they do lose a contractor to a client.

Hmmmm....lawyers would have a field day.

[ilgitano]

....which means....back to my original point..... that generally speaking the ever-so popular tie-in clauses seem to be put in by EB's hoping that their contractors don't know the law. I wonder how many people are duped by it and how much money the EB's make from falsely claiming loss of business when they do lose a contractor to a client.

Hmmmm....lawyers would have a field day.

Don't know if this thread is still live ... but just entered this space. I signed opt-out after interview - even had a small back-and-forth about it when it happened.

It's 8 months later and negotiations on a (3rd) extension with the agent have broken down. Client is happy to take me on - but what exactly is the recourse for the agent?

Presumably I am opted-in, which limits what he can claim for "lost business"?

NB: I've tried reading the regs - makes my head spin

[TheFaQQer]

Don't know if this thread is still live ... but just entered this space. I signed opt-out after interview - even had a small back-and-forth about it when it happened.

It's 8 months later and negotiations on a (3rd) extension with the agent have broken down. Client is happy to take me on - but what exactly is the recourse for the agent?

Presumably I am opted-in, which limits what he can claim for "lost business"?

NB: I've tried reading the regs - makes my head spin

I would say that you are opted in. The agency will say that you are opted out, because you opted out before you were "introduced" - they tend to define introduced as being on site, working.

You'd need to leave 8 weeks gap if you are opted in, before you can go direct - this may be fine to do (both with the client and your own financial situation), but generally isn't.

If you are opted in, and go direct without leaving 8 weeks notice, then they can claim losses from you. If you are opted out and there is a restriction in the contract, then they can claim losses from you. Bear in mind that they can come after you and / or the client - just because they aren't after the client doesn't mean they will leave you alone.

If you know what their margin is (or can guess), then you can estimate what their losses would be, and might be able to come up with a settlement figure with them.

[malvolio]

Actually I think the intention is pretty clear. Quoting from the regs themselves...

Regulation 32(9) provides that limited companies and those persons whose services they supply can choose not to be covered by the provisions of these Regulations. If they do exercise the choice not to be covered by the Regulations, then both the limited company and the worker to be supplied must give notice, to the employment agency or employment business that this is the case, before they are either introduced or supplied to a hirer.

(My emphasis)

They are trying to cover the dual conditions of people like us who are intrerviewed by the client prior to being taken on, and people like traditional temps, who merely turn up on Monday morning, steno pad in had, to begin work as directed by their agency.

In other words, as far as we are concerned it is the first official contact between workseeker and client that sets the "introduction" point - and going back to the OP's original question, he cannot have opted out at the point the agency says he can, therefore he is opted in.

If this ever does go to court, it would be a valuable addition to case law to get this particular point established for once and all.