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

[tim123]

This is what my contract says:

"The Supplier acknowledges that it will not act under the control of the Client or End User and that for the purposes of the Employment Agencies Act 1973 the Company is not acting as an Employment Business. Subject to communication by any means of this document by the Company to the Supplier prior to the Commencement Date, the provision by the Supplier of any part of the Services shall be deemed to be acceptance of this agreement whether or not this document is signed by the Supplier."

I thought this was just an 'outside IR35' clause, but I'm not sure about the last part - sounds like I've opted out ??

The last part says "you are deemed to have accepted the T&C's in this contract by starting to perform the role".

This is standard contract law. A clause like this would be a deemed to be there, even if it wasn't.

tim

[LazyFan]

Contact the client

Contact the client directly and say your happy to sign but the agency has put in this silly clause which you are sure is not in the clients contract and possibly means the contacts are not back to back (mirrored) as the client would want anyway.

Tell the client to inform (via email with you cced in) the agency that they do not want this clause in either and you will cross it out (photocopy it for yourself) and send it back to the agency. And you will start as agreed.

Job done.

[calder]

Agent sent me a job spec today and asked me if I wanted to opt in or opt out. I replied with opt in option. Then they called me and told me they can't proceed with me if I choose to opt in. I asked why? And they started giving me all the usual bulltulip: because all contracts above £xxx/day must be opt out, because otherwise I'm entitled to holiday, because they do that with all contractors, bla bla bla... Then they asked me to re-send them e-mail and write that I made a mistake and wanted to opt out.

When I asked them: why did you ask me if I want to opt in or opt out if you won't proceed if I opt in anyway? They replied: because we have to give you the option. I replied: you're not really giving me the option as you won't proceed if I opt in anyway... I cut the conversation short as I didn't want to get into that kind of arguments with them

[psychocandy]

Just thought.

What happens if the agency put this clause in the contract but you dont sign any opt out form? Does acceptance of the contract mean you're now opted out or does it have to be in conjunction with a separate opt out?

Basically, just wondered, if it happens, whether its worth arguing about if its invalid anyway.

[The Agents View]

Businesses opt out of the regulations, because they are happy to work on the basis of a business to business contract.

Temps Opt In, because they want employee rights.

Are you a business owner? or a temp?

If you're a Temp, I assume you're paying yourself PAYE for the full amount, sit inside IR35, and are paying your taxes accordingly?

[malvolio]

Agent sent me a job spec today and asked me if I wanted to opt in or opt out. I replied with opt in option. Then they called me and told me they can't proceed with me if I choose to opt in. I asked why? And they started giving me all the usual bulltulip: because all contracts above £xxx/day must be opt out, because otherwise I'm entitled to holiday, because they do that with all contractors, bla bla bla... Then they asked me to re-send them e-mail and write that I made a mistake and wanted to opt out.

When I asked them: why did you ask me if I want to opt in or opt out if you won't proceed if I opt in anyway? They replied: because we have to give you the option. I replied: you're not really giving me the option as you won't proceed if I opt in anyway... I cut the conversation short as I didn't want to get into that kind of arguments with them

Tell them they are breaking the relvant law. They cannot make your opting status a condition of the contract, nor can they require you to make the choice either way.

Name and shame, BTW,

[malvolio]

Businesses opt out of the regulations, because they are happy to work on the basis of a business to business contract.

Temps Opt In, because they want employee rights.

Are you a business owner? or a temp?

If you're a Temp, I assume you're paying yourself PAYE for the full amount, sit inside IR35, and are paying your taxes accordingly?

Ermm, no. While I agree bsuinesses would probably want to opt out, it has no bearing on employment rights (it's mostly about protecting payment rights and handcuff clauses as far as non-agency workers are concerned) and it has zero effect on your IR35 status.

Shame an agent doesn't know that...

[calder]

Tell them they are breaking the relvant law. They cannot make your opting status a condition of the contract, nor can they require you to make the choice either way.

Name and shame, BTW,

I know they're breaking the law.

They called me this morning asking me to re-send them the e-mail saying I made a mistake and want to opt out. I haven't replied. Then they called me again at lunch time. I told them I'll think about it... I'm now wondering if I should deal with that agent or not.

[psychocandy]

Businesses opt out of the regulations, because they are happy to work on the basis of a business to business contract.

Temps Opt In, because they want employee rights.

Are you a business owner? or a temp?

If you're a Temp, I assume you're paying yourself PAYE for the full amount, sit inside IR35, and are paying your taxes accordingly?

I think the general consensus is that opt out of the regulations is IR35 neutral anyway.

And dont tell me the agencies want you to opt out to look after you. They want you to do it so that they can restrict you from ever going direct in the future.

[craig1]

I know they're breaking the law.

They called me this morning asking me to re-send them the e-mail saying I made a mistake and want to opt out. I haven't replied. Then they called me again at lunch time. I told them I'll think about it... I'm now wondering if I should deal with that agent or not.

If you're not that fussed about the role and want to make a point, send them these two links:
http://www.legislation.gov.uk/uksi/2...lation/32/made
http://www.bis.gov.uk/files/file24248.pdf

Direct them to Regulation 32(13) of the first link and the similar point on page 34 in the second. Tell them that they're breaking the law by trying to force you to opt out.