Agencies and Opting Out

[TheFaQQer]

Some just don't get how it works, do they?

I started this contract at the start of June, having stated at the start that I was opting out. Gig started a week late as I needed to argue over the terms of the contract to get an IR35 friendly one - agency argued at the time that I should opt out to get one, while I argued that since I'd interviewed, I couldn't opt out any more. Eventually, I got an IR35 friendly contract, without opting out.

Had a letter last week (dated the week before) saying that they'd just done an audit and could not find a signed copy of the opt out letter - please sign one of the two copies and return them by October 19th at the latest!

They really don't understand it all, do they???

[Sockpuppet]

Ok, so we know that opt out has no IR35 implications.

Opting in can get rid of a restraint of trade restriction.

Is there any benefit (to us not the agy) of us opting out. I know they dont have to get refs but do we get anything.

[malvolio]

Ok, so we know that opt out has no IR35 implications.

Opting in can get rid of a restraint of trade restriction.

Is there any benefit (to us not the agy) of us opting out. I know they dont have to get refs but do we get anything.

For most routine IT contractors, probably not a lot in it. However, for some who work in slightly more direct markets there are commercial benefits in being clearly outside the regs, which is why the PCG fought for the opt out. It also means that you have a bargaining chip with the agency, who have to do significantly less work on the contractual terms and carry less commercial risk. There are also some tiny pointers away from IR35 in terms of financial risk and reduction in MOO, but if you need them to make the case, you're probably in trouble anyway!

[shoes]

Is there any benefit (to us not the agy) of us opting out. I know they dont have to get refs but do we get anything.

If there is any serious competition for a role I would think that opting out gives you a better chance of getting it. They aren't supposed to, but given the choice an agency is going to bin the 'opt in' guy in favour of an 'opt out' guy. But since they don't seem to know how all this stuff works, the best solution is to tell them you are going to opt out and then just don't mention it again. Agent sends you to interview having not got you to sign an opt out beforehand, you get the gig, 'forget' to sign any opt out form the agent sends you subsequently (which wouldn't be valid anyway but best not to give them any ammo) and go direct at extension time.

[The Lone Gunman]

Surely if you have verbally agreed to opt out then you can sign a back dated opt out from the date you said you would.

I am still arguing that opt in is IR35 friendly. The legislation states that the contract has to state whether it is a contract of service or for services. Surely this as a legal requirement of the agency regs can be used as evidence in an IR35 investigation. If the contract is a sham then the agent has broken the law.

[malvolio]

Surely if you have verbally agreed to opt out then you can sign a back dated opt out from the date you said you would.

I am still arguing that opt in is IR35 friendly. The legislation states that the contract has to state whether it is a contract of service or for services. Surely this as a legal requirement of the agency regs can be used as evidence in an IR35 investigation. If the contract is a sham then the agent has broken the law.

Oh you poor, optimistic fool...

We have major agencies giving us contracts that are flatly contradicted by the Ts&Cs they have agreed with the client (vide the Island Consulting case for one) and which have led to at least one case of a contractor being done for IR35 when he thought he was well outside. Little details like adherence to the Agency Regs are completely pointless in an IR35 investigation.

You're wrong anyway. Opting in requires the agency to perform a series of checks against you as an individual, which makes it more likely that you have a contract of service, hence more likley to be inside. Plus you are abrogating a degree of financial risk - you get paid regardless - which is another pointer away from being in business. All little things but potetnially significant.

[TheFaQQer]

I only opted in to see how the agency would handle it!

[TheFaQQer]

Oh you poor, optimistic fool...

We have major agencies giving us contracts that are flatly contradicted by the Ts&Cs they have agreed with the client (vide the Island Consulting case for one) and which have led to at least one case of a contractor being done for IR35 when he thought he was well outside. Little details like adherence to the Agency Regs are completely pointless in an IR35 investigation.

You're wrong anyway. Opting in requires the agency to perform a series of checks against you as an individual, which makes it more likely that you have a contract of service, hence more likley to be inside. Plus you are abrogating a degree of financial risk - you get paid regardless - which is another pointer away from being in business. All little things but potetnially significant.

Interesting point here is whether not opting out (because no-one asked you about it) would have an impact at all. I've only ever had one agent ask me whether I was out or not before an interview (which was this contract)

[VectraMan]

I'm sure the opt out form I signed was sent with the contract, which I obviously didn't see until after the interview. So does that mean it's all meaningless and I'm not opted out?

That seems very odd.

I've done two gigs opted out, and one where nobody mentioned anything so I wasn't, and there wasn't any difference in what the agency did or what they asked for.

[TheFaQQer]

I'm sure the opt out form I signed was sent with the contract, which I obviously didn't see until after the interview. So does that mean it's all meaningless and I'm not opted out?

That seems very odd.

I've done two gigs opted out, and one where nobody mentioned anything so I wasn't, and there wasn't any difference in what the agency did or what they asked for.

Yes - the agency will probably argue that the regulations say that you can opt out until "you are introduced to the client or start work". The word that they don't seem to see or understand is that it actually says "either you are introduced to the client or start work" which renders the clause differently.

I think that I've actually been opted in on every contract I've done over the past 2 years - it's just that only one agency has ever asked me before I interviewed whether I was in or out.