EB regs - no opt out and direct to client

[The Lone Gunman]

so the opting out refers to opting out of the legislation not the agency terms.

Now I understand !

Wahey. I think he's got it. By George I think he's got it.

[The Lone Gunman]

If you're out, you look better from an IR35 point of view, but lets not get into that.

Now I know this is contentious and a lot of you disagree, and I know this is not the right place, but..........

It quite clearly states in the regulations that an EB must confirm with the work seeker and with the hirer whether the work seeker is engaged under a contract of service (employee) or a contract for services (freelance).
This in my book is a huge pointer to outside IR35 (assuming contract for services) and should at least avoid penalty payments should a court find otherwise.

[Bluebird]

do you get the EB to confirm in writing that they have told the 'hirer' [ does this mean end client ] that the it's for Services not Service ?

I guess it's in the EB's contract with the client which you won't get to see....

[The Lone Gunman]

do you get the EB to confirm in writing that they have told the 'hirer' [ does this mean end client ] that the it's for Services not Service ?

I guess it's in the EB's contract with the client which you won't get to see....

If you read the regs you will see that they have to tell you and then they have to tell the hirer (client) what they told you.

[The Lone Gunman]

I'm not sure it would be legal to sidestep the law by overriding contract terms between EB and client. Otherwise, the new regulations would be pointless. I expect EBs are simply lying to clients hoping to get away with this kind of thing.

The regs do not actualy stop this though do they.
There appears to be nothing in there that states the agent can not charge the client should they keep a work seeker on.

I agree that it would be odd, but all the regs say is that the agent can not limit the work seeker. Leaves the goal wide open on limiting the client.

[oraclesmith]

I'm not sure it would be legal to sidestep the law by overriding contract terms between EB and client. Otherwise, the new regulations would be pointless. I expect EBs are simply lying to clients hoping to get away with this kind of thing.

I think you're right. From what I've read, it's not illegal for the EB to enforce some kind of charge on the client if it's reasonable and it's within the criteria laid out in reg 10. However, it is almost certainly a pointer to a dodgy EB if they have retention criteria in the contract the contractor signs. In the regs it seems the client always pays any charge, not the workseeker. It means that contractors can approach old clients after a couple of months of the end of the contract.

So.... has anyone got a recent contract that has the old 12 month clause still in it?

[oraclesmith]

The regs do not actualy stop this though do they.
There appears to be nothing in there that states the agent can not charge the client should they keep a work seeker on.

I agree that it would be odd, but all the regs say is that the agent can not limit the work seeker. Leaves the goal wide open on limiting the client.

See reg 10. This is about the EB-client relationship and the charges they can make to the client. They CAN make charges, but they are limited in scope and don't apply at all (as far as I can ascertain) after 8 weeks has passed since the end of the contract. So those terms which said that you can't work direct for client inside 12 months unless you pay our cut (or in the EB-client contract which say if you engage contractor within 12 months you must pay our cut), are illegal. In my opinion.

[The Lone Gunman]

See reg 10. This is about the EB-client relationship and the charges they can make to the client. They CAN make charges, but they are limited in scope and don't apply at all (as far as I can ascertain) after 8 weeks has passed since the end of the contract. So those terms which said that you can't work direct for client inside 12 months unless you pay our cut (or in the EB-client contract which say if you engage contractor within 12 months you must pay our cut), are illegal. In my opinion.

I read it again. You are right. Obviously, this is my opinion and as ever I am not qualified to offer that opinion.
I must have read these regs a dozen times and that bit has always passed me by.

[Bluebird]

This is what it says in my ltdco's contract:

The Supplier[My Co] and the Representative[Me] shall not
3.1 during the Contract Term or thereafter for a period equivalent to the period of this agreement (but not being less than 3 months nor more than 12 months) either directly or indirectly (whether under a contract of services or contract for services or through any third party) provide similar consultancy services to the Client or End User except by contract through the Company;

[The Lone Gunman]

This is what it says in my ltdco's contract:

The Supplier[My Co] and the Representative[Me] shall not
3.1 during the Contract Term or thereafter for a period equivalent to the period of this agreement (but not being less than 3 months nor more than 12 months) either directly or indirectly (whether under a contract of services or contract for services or through any third party) provide similar consultancy services to the Client or End User except by contract through the Company;

If you are opted in then that para is void if not actualy illegal.