opt in/out confusion

[Denny]

But it will imply, that you consider that, you have been placed at a client:

"b) by an employment business to an employee of the employment business for the purpose of finding or seeking to find another person, with a view to the employee acting for and under the *control* of that other person."

As that is the definition than an opted-in individual can be placed at a client site by an 'agent'.

Tim

Well don't agents consider themselves providers of contractor services anyway? Isn't that the way the margin fee is set up - to pay for all the time the contactor is on site? Otherwise the role of the agent would be completely redundant. The only way I could agree with the sentiments you express is if the agent was paid a one off fee for matchmaking CV to clients but took no further fee for the contractors' own services once on site and the relationship between contractor to end client was a straightforward b2b arrangement.

Most opting in contracts contain clauses that disassociate the contractor from employee status by both agent and end client.

Stay opted in.

[The Lone Gunman]

“work-finding services” means services (whether by the provision of information orotherwise) provided -

(a) by an agency to a person for the purpose of finding that person employment or seeking to find that person employment;
(b) by an employment business to an employee of the employment business for the purpose of finding or seeking to find another person, with a view to the employee acting for and under the control of that other person;
(c) by an employment business to a person (the “first person”) for the purpose of finding or seeking to find another person (the “second person”), with a view to the first person becoming employed by the employment business and acting for and under the control of the second person;

“work-seeker” means a person to whom an agency or employment business provides or holds itself out as being capable of providing work-finding services.

The quote was out of context and doesnt mean what was proposed anyway!
We dont realy fit any of the categories stated, (a) is the nearest, but most agents claim to be employment businesses due to other parts of the act.

[tim123]

The quote was out of context and doesnt mean what was proposed anyway!
We dont realy fit any of the categories stated, (a) is the nearest, but most agents claim to be employment businesses due to other parts of the act.

We clearly fit into category (b). We are not seeking direct employment with the client, nor are we seeking to be employed directly by the agency whilst at the client.

'Employed' has a specific legal meaning, and being placed to perform a service is not it. Funnily enough, that fits into category (b).

As to whether it means what it is meant to mean, then that is for a court to decide, if asked.

I don't understand the point about it being out of context. The context is "opting in to the regs" (pendant mode, "not opting out of the regs"). How can quoting the regs be out of context for this discussion?

tim

[The Lone Gunman]

It is out of context because you only posted section B and seemed to be saying that it showed your status as an employee.
That particular section is a statement of what "work finding services" are.
I would suggest that the list of work finding services is not exhaustive and can easily be shown to be so.

Section B clearly states that it is for employees of the employment business, something I am clearly not and no IR35 case has ever attempted to show.
IR35 status has always been used to show an employee relationship between the client and the contractor.
In the rest of the regs, even if you classify yourself under para b) you will find that the agent and the client have to agree whether your contract is OF or FOR service/s which is a clear IR35 indicator.
The agent/employment business is required to make sure that all contract terms match which means there can be no constructed contract for an IR35 case unless the agent hasnt done this and if that is the case you would have a very good argument that you took this contract in good faith that your terms matched the clients terms.

With the added benefit of guaranteed payment and a certain amount of leverage with the going direct clauses it makes no sense to opt out unless the agent offers realy solid outside IR35 contracts.

[DodgyAgent]

Rule 1 of contracting - never ever believe an agent. He is not working for your benefit in any way shape or form.

You could change the word agentwith anyone for that matter, even "contractor"

[The Lone Gunman]

You could change the word agentwith anyone for that matter, even "contractor"

With all due respect Dodgy, it has been my experience that agents are not the contractors friend.
They are out to screw you down on your rate to maximise their take and beyond that dont care. They say your IR35 status is beyond their control and will do and say pretty much anything to push you down the opt out route to avoid the very obvious responsibilities opting in forces on them.
I have yet to meet an agent who will state their margin up front and who will offer advice based on the contractors benefit first and the consequences to the agent second.

[boredsenseless]

[QUOTE=I have yet to meet an agent who will state their margin up front and who will offer advice based on the contractors benefit first and the consequences to the agent second.[/QUOTE]

Yeah in much the same way that you would inform a prospective client that the role they are interviewing you for is one that a school leaver could perform for a quarter of the money you'd charge!! Double Standards!!

[The Lone Gunman]

Yeah in much the same way that you would inform a prospective client that the role they are interviewing you for is one that a school leaver could perform for a quarter of the money you'd charge!! Double Standards!!

dont be so pathetic. you have no idea what my standards are. that is an irrelevance anyway, i do not sell my self as representing the client. if a client asked i would feel obliged to answer honestly.
now go ask an agent for a valid reason for opting out as a contractor.

[DodgyAgent]

it is all a matter of personal integrity

With all due respect Dodgy, it has been my experience that agents are not the contractors friend.
They are out to screw you down on your rate to maximise their take and beyond that dont care. They say your IR35 status is beyond their control and will do and say pretty much anything to push you down the opt out route to avoid the very obvious responsibilities opting in forces on them.
I have yet to meet an agent who will state their margin up front and who will offer advice based on the contractors benefit first and the consequences to the agent second.

That is fair enough, but that is also life. Agents are not paid to indulge contractors by being "nice" to them, they are paid to put bums on seats. Some rare agents are very good at indulging contractors and putting bums on seats. OK it pays to treat contractors professionally (rather than being nice), some do and some do not. The key though for contractors is to understand these harsh realities and use them to their own advantage without getting too bitter and twisted.

As for opting in or out, my own agency does not give a fig what a contractor chooses to do. I am not quite sure why an agent should necessarily be forthcoming about his margin, after all it is the client who is paying for it, not the contractor. In my case I am only ever forthcoming about my margin if it is very low and the contractor/client needs (in my opinion) to realise that I in a tense negotiation I am not profiteering excessivly.

If on the other hand a contractor asks what my margin is I will tell them.

[boredsenseless]

If on the other hand a contractor asks what my margin is I will tell them.

Thats very decent of you since you are under no obligation at all to disclose that. In fact some of the advice on here to ask the client what they pay is at best a little morally and professionally suspect, and if your contract with the client states the figures are commerical in confidence then the client is in actual fact acting to breach the contract.