Has opting in cost me the gig?

[Ardesco]

Not the first time I have heard an agent asking you to opt out in order to get a decently worded contract. Surely this is something that they should not be able to do.

I wonder if thats worth bringing up on the PCG forums...

Something to do when I get home

[Ardesco]

Rang the pimp and he says that I can still opt out, and if I opt in then I can't have a contract with a right of substitution clause in it.

Also when will the muppet realise that you are opted in now no matter what....

I would just sign the opt out thing and get the contract that has substitution clause in it (Make sure the contract doesn't have silly clauses like if you opt out you can substitute, but if you opt in you can't. It should be a static subc clause with no conditions).

If you ever get any problems with them paying get a solicitor to send a letter stating that you are opted in no matter what they say because you were intorduced to the client, with some legal guff stated. Once thier legal dept looks at it they will probably realise that you have them over a barrel anyway.

[TheFaQQer]

There are some other goodies in the contract as well, so even the opt out one needs to go to someone for review.

I particularly like the clause that says "The Contractor shall also not discourage the Client from dealing with the Company. The Contractor hereby indemnifies the Company for all financial loss it suffers arising from any breach by the Contractor of this clause."

I think that's coming out!

[Ardesco]

There are some other goodies in the contract as well, so even the opt out one needs to go to someone for review.

I particularly like the clause that says "The Contractor shall also not discourage the Client from dealing with the Company. The Contractor hereby indemnifies the Company for all financial loss it suffers arising from any breach by the Contractor of this clause."

I think that's coming out!

I suspect that is unenforcible anyway. It's amazing what some people try and put in thier contracts....

[TheFaQQer]

And still it rumbles on...

The agency policy is that all contractors are presented to the client as opted-in. It is their understanding that when you sign the contract (and opt-out), then you are opted out.

Their policy is to only offer an IR35 friendly contract if you opt out; if you want to opt in, they will word the contract so that you will be caught by IR35.

Sadly, my company policy is to sign an opted-in, IR35 friendly contract - that's what I normally do, and other agencies have no problem providing one.

Does anyone have the exact point in the agency regulations that says that once I've been introduced to the client, I'm opted in?

[malvolio]

Does anyone have the exact point in the agency regulations that says that once I've been introduced to the client, I'm opted in?

The whole set of rules is at http://www.dti.gov.uk/files/file24248.pdf.

It's in Regulation 32(9) which states

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.

You might also note that it is illegal for an agency to require a worker to opt out of the regulations as per 32(13)

Regulation 32(13) provides that an employment agency or employment business may not make the provision of its work-finding services conditional upon either a limited company or the worker to be supplied giving notice to opt out of the Regulations.

[Ardesco]

http://www.executivesonline.co.uk/ca...mp_Regulations

Specifically of interest:

Before you are introduced to a client, an agency will ask you to clarify your position as to these regulations – whether you wish to remain covered by them in the same way as a temporary staffer would be – by formally indicating whether you opt out. It is, however, a contravention of the Act for any agency to require you to opt out of the Agency Regulations.

And I belive this link works:

http://www.dti.gov.uk/files/file24248.pdf

[Ardesco]

Ah Mal beat me to it

Anyway send that to your pimp and see what he comes up with

[TheFaQQer]

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.

You might also note that it is illegal for an agency to require a worker to opt out of the regulations as per 32(13)
[/left]

Regulation 32(13) provides that an employment agency or employment business may not make the provision of its work-finding services conditional upon either a limited company or the worker to be supplied giving notice to opt out of the Regulations.

[/font]

Thanks.

I think that they are arguing the first point that it says "introduced or supplied" - since I've not been supplied, then I can opt out.

Sadly, they aren't forcing me to opt out - they will quite happily let me opt in, but won't provide a decent contract unless I opt out. So they're within the letter of the act, since they aren't making me do this, it's my "choice".

They are aware of what 32(9) says, it's just their interpretation of it!

[Ardesco]

but is doesn't say

"introduced or supplied"

it says

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

Tell them to read it again and take some grammer lessons