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

[SueEllen]

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...

REC and their lawyers interpret "introduction or supply" differently to what contractors lawyers interpret it.

The law is badly drafted as it doesn't make clear what the intention is and it hasn't been tested in court.

So to be on the safe side some agents will make you opt-out on a separate document before submitting your CV. There as other agents claim it's too much work because they are soo busy.

[Wanderer]

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.

Uh huh. Do they quote any case law to back this up? Oh, I didn't think so.

If agencies wanted to, they could read the original legislation, section 32(9) which says the worker must opt out "before the introduction or supply" and that only applies to LTD company workers too - an umbrella worker CANNOT opt out. But perhaps agencies will just hear what they want to hear and bluff contractors into thinking that the opt out was valid then just claim ignorance if it comes down to it.

Given that most people with business brains opt-out

Nice try but we're too smart to fall for that one. Fact is that there are very good business reasons NOT to opt out...

I do agree that it's unlikely that anything will ever come of it, but that's only because no agency will ever a test case come to court, preferring FUD tactics.

[The Agents View]

Uh huh. Do they quote any case law to back this up? Oh, I didn't think so.

Got anything you can quote as a test case for your side? Oh no - course not... <sigh> Do think about these things before spouting tulip.

If agencies wanted to, they could read the original legislation, section 32(9) which says the worker must opt out "before the introduction or supply"

Before the introduction or supply. Please define. is it introduction? or supply? or whichever one suits you best at the time?

Nice try but we're too smart to fall for that one. Fact is that there are very good business reasons NOT to opt out...

Yet every contractor who works through me, is Opted out, of their own accord. How odd that there's a revolution, that nobody else has heard of?

[SueEllen]

Got anything you can quote as a test case for your side? Oh no - course not... <sigh> Do think about these things before spouting tulip.

We asked for your case law first but you haven't shown it to us.

Instead you sprouted stuff about REC which is a self-regulating recruitment industry organisation.

Before the introduction or supply. Please define. is it introduction? or supply? or whichever one suits you best at the time?

We know your definition from your REC lawyers.

You probably know our definition from the PCG.

Yet every contractor who works through me, is Opted out, of their own accord. How odd that there's a revolution, that nobody else has heard of?

That's probably because you lied to them like some of* the REC affiliated agencies and claimed it's linked to IR35 when there is no link, and provided them with a nasty contract if they didn't opt-out.

*Please note I didn't say "all" as there are those in REC who know they have proper contracts with the end-client they can enforce so don't give a damn whether the contractor is opted-in or out. In addition they ensure all contract clauses are written by a solicitor instead of being made up by a director of the agency who thinks a term can be legally enforced because it's in writing.

[calder]

Yet every contractor who works through me, is Opted out, of their own accord. How odd that there's a revolution, that nobody else has heard of?

Probably because you make it clear to them that if they don't opt out (of their own accord, of course), you wouldn't send their CV to the client. I like your definition of "of their OWN accord"...

[rd409]

Yet every contractor who works through me, is Opted out, of their own accord. How odd that there's a revolution, that nobody else has heard of?

Do you represent one of the agencies, which forces the contractors to accept the contract, opt-out forms digitally, before they can submit their time sheets?
I have had experience in past, where agents tried to force me into accepting the opt-out. I always made a point in sending an email to them stating clearly that I do not want to opt out, but am being forced to do that. Also signing the opt-out after the start date of the contract. Introduction can be ambiguous as to whether it occurred during the submission of CV, or interview or start date; but supply is clearly the start date and not the payment date of first invoice.
So am quite happy in the knowledge that the opt outs that I have had to accept so far, are all invalid. One of the agents himself advised me to do that, as he knew it is illegal, but was a standard practice at the agency.

[malvolio]

Grrr...

For the last time, "Introduction" is perfectly clearly understood; it means when the client knows who you are. In our case that will be shortly before interview when a personalised CV is submitted for consideration ("Mr Client, may I introduce Joe Contractor"). For the young lady from Office Angels, or Bert the hop-picker, it's when they turn up on the Monday morning (Hi, I'm Sally, I'm from the agency...?"), since they have not been sold as a skilled person, merely as a generic resource so the client doesn't care who turns up.

But clearly this is way too hard - or more likely too inconvenient - for the average agency to understand.

[SueEllen]

But clearly this is way too hard - or more likely too inconvenient - for the average agency to understand.

It's both.

If you have been stuck in an office with sales type people you know that some of them have a difficulty understanding concepts that are common sense and logical to the majority of other people.

[TraceRacing]

The thing I don't fully understand is that surely by default you are opted-in? You cannot be opted-out of something by default. So surely the responsibility is incumbent upon the agency to confirm the state prior to "introduction or supply"?

Conceptually it's like the TV Licence, the authorities opt every home in (in other words the default position is that every home has a TV therefore requires a licence) and it's your responsibility to advise/inform if this is not the case.

Unless it's a total CU and used to obfusticate and confuse....

[malvolio]

Unless it's a total CU and used to obfusticate and confuse....

No. It's because the deal the agency has with the client and the contractual terms they have offered are incompatible with an opted in contract to the worker. Don't forget, they agency sells us as being their dedicated resource; makes it kind of tricky to allow a six week maximum handcuff clause, doesn't it...