EB Regs - Agency wants me to opt out - Why ?

[malvolio]

Are you frikkin kidding me?

No. I've been working with agencies on both sides of the hiring line for too many years. Their understanding of the rules, with very few exceptions, is pitiful. You are also bulk sales organsiations with a poor grasp of your product, not the experts you claim to be in placing appropriately skilled professionals, but don't get me started on that one.

Very easy. However, how many people actually do that? I have been doing this for a good few years, and I've NEVER seen anyone send an opt out in their application.

I do. I usually get a contract back with a form to fill in saying I want to opt out. When will your side learn that the opt out is none of your f***ing business anyway? You merely give the contract that correctly reflects the workers chosen status.

Wanna try it?

Don't try an bully me, you're not big enough. But let's see you sue someone for going back to a client after 6 weeks and ignoring your 6 month handcuff. Snag is, the average agency is too risk averse to go to court, they would rather made a loud noise and then back down.

[craig1]

Legal advice from the REC, and from our process auditors, suggests that the presence of the opt out form at any time in the process, pre-payment, is submissable as agreement to opt-in or out. Given that most people with business brains opt-out, and the business runs over 3500 contractors, without having ever had an issue with opt-in/opt-out - we're either sitting the biggest commercial time-bomb ever, or this information is correct.

I held my tongue last time on this but, well, now you're just getting insulting.

Why would it require "business brains" to opt-out? For a bog-standard genuine contractor doing work that is entirely outside of IR35, why would they ever reasonably want to opt out? Opting out gives the agency the balance of power in the B2B relationship while being opted in goes some way to evening it out. It means an agency can't screw me over as easily for payment if their relationship with the client breaks down or they just can't be bothered paying. From a purely business perspective, being opted-in is a solid business alternative as it vastly improves my options as a business in going directly to the client once the contractor/agency relationship breaks down.

I can understand why agencies don't want contractors opted-in, it actually gives the contractor legal rights over typically iffy agency dominated B2B contracts.

As someone who has been contracting since before IR35 came in, I've always remained opted-in and in my experience the better agencies couldn't care less because their standards are already high enough that the regulations give then no more of a genuine burden. If an agency repeatedly insists I opt out then it always raises alarm bells that they're going to be seriously iffy in at least one substantive area. I don't mind them trying it on but I expect them to understand a "no" is a "no".

An example, my current agency got seriously snotty about me not opting out and actually insisted that they would only accept me "opted in" if I gave them references from every client over the last three years, audited business books and personal indemnities from me outside of my limited company protections. It took the client telling them to wind their necks in to get that point dropped. Probably the worst agency I've ever dealt with but not named because I have 4 months of my contract to run.

Finally, how can "introduce" in the regs ever possibly mean "they're actually not introduced until they've been paid". You'd have to be on a serious set of drugs to believe a court would ever come down on that interpretation.

[SueEllen]

Legal advice from the REC, and from our process auditors, suggests that the presence of the opt out form at any time in the process, pre-payment, is submissable as agreement to opt-in or out. Given that most people with business brains opt-out, and the business runs over 3500 contractors, without having ever had an issue with opt-in/opt-out - we're either sitting the biggest commercial time-bomb ever, or this information is correct.

Since you are all to spineless to go to court it can never be tested.

Strangely some REC members haven't bothered to send me an opt-out form or even asked for me to send the one they sent back.

Talking to the client it seems they are the agencies who ensure they have it in their contract they can't hire contractors directly for a reasonable time period.

[SueEllen]

Finally, how can "introduce" in the regs ever possibly mean "they're actually not introduced until they've been paid". You'd have to be on a serious set of drugs to believe a court would ever come down on that interpretation.

I'm going to be kind and suggest he meant "supplied".

Also TAV forgets when you hire a lawyer they know they are their to fight your corner.

However the difference between a large organisation hiring a lawyer and a small business/individual hiring one is in the latter case they know you don't have large resources for a long fight so tell you the cheapest way to deal with it. This still doesn't stop individuals with limited legal help beating large companies with lots of resources.

[malvolio]

But let's see you sue someone for going back to a client after 6 weeks and ignoring your 6 month handcuff. Snag is, the average agency is too risk averse to go to court, they would rather made a loud noise and then back down.

Actually, not strictly true. There's no point in suing the contractor since you would sue the client, with whom you would have a similar contractual arrangement not to re-hire ex-agency people for a period, and which would have a much stronger chance of you getting paid for lost earnings. Which makes the opted in protection pretty much meaningless. Which is yet another case of the contractor being bound by a contract to which he is not a party (and that, incidentally, shows a complete disregard for a fundemental tenet of UK law)

Still think you hold the high moral ground here?

[SueEllen]

Actually, not strictly true. There's no point in suing the contractor since you would sue the client, with whom you would have a similar contractual arrangement not to re-hire ex-agency people for a period, and which would have a much stronger chance of you getting paid for lost earnings. Which makes the opted in protection pretty much meaningless. Which is yet another case of the contractor being bound by a contract to which he is not a party (and that, incidentally, shows a complete disregard for a fundemental tenet of UK law)

Still think you hold the high moral ground here?

TAV obviously works for an agency that doesn't put such a clause in to their client-agency contracts, which is why they have to push contractors into opting-out.

[The Agents View]

TAV obviously works for an agency that doesn't put such a clause in to their client-agency contracts, which is why they have to push contractors into opting-out.

To Assume, is to make an ASS of U and ME.

I work for the most risk averse organisation in the country - I have more clauses than a Kris Kringle convention

[psychocandy]

This is a good demonstration of why these rules do not stand up in a court.

Ultimately, the very nature of contract work, is quick turnaround. If you think I would have the time to wait for an opt in or opt out form to come through prior to submission, then you are from another planet. Anyone who insisted on this, would simply be binned for causing me more hassle than they are worth.

The above, is the reason I stay anonymous on this board. It's the reality of the situation vs what the rules state.

Yeh, so if you dont get them to opt out before introducing them to the client then, by default, everyone is opted in.

So why do some agencies then try to get you to opt out at the contract stage? Its too late then anyway...

[psychocandy]

Legal advice from the REC, and from our process auditors, suggests that the presence of the opt out form at any time in the process, pre-payment, is submissable as agreement to opt-in or out. Given that most people with business brains opt-out, and the business runs over 3500 contractors, without having ever had an issue with opt-in/opt-out - we're either sitting the biggest commercial time-bomb ever, or this information is correct.

Complete bollox. Business brains my arse. I think the expert opinion is that the opting in or out thing is IR35 neutral if thats what you're on about....

However, it might be deemed a business decision when a contractor decides not to sign away rights they have by law.

But, I guess a lot of contractors fall for it so agencies are happy...

[psychocandy]

Don't try an bully me, you're not big enough. But let's see you sue someone for going back to a client after 6 weeks and ignoring your 6 month handcuff. Snag is, the average agency is too risk averse to go to court, they would rather made a loud noise and then back down.

Spot on. Exact reason why agencies want to try and convince you that opting out is the best option.