Opt Out/In

[TykeMerc]

I'm having a wonderful time at the moment convincing an Agent that I can't in fact Opt OUT of the Agency Regulations no matter how much they want me to. I was introduced to the client before they tried to get me to Opt Out.

Apparently their Legal team are advising that I still can opt out and are trying all sorts of nonesense including the implication that the contract will be off unless I do. I know it's all flannel on their behalf, but I need to be able to prove it to shut them up comprehensively.

Can anyone point me to the specific sections of the act which detail the "introduced to the client bit" ? Ideally an online doc with section/subsection detail would be helpful.

[TriggerHippy]

There might be some info of use here:

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

[malvolio]

I'm having a wonderful time at the moment convincing an Agent that I can't in fact Opt OUT of the Agency Regulations no matter how much they want me to. I was introduced to the client before they tried to get me to Opt Out.

Apparently their Legal team are advising that I still can opt out and are trying all sorts of nonesense including the implication that the contract will be off unless I do. I know it's all flannel on their behalf, but I need to be able to prove it to shut them up comprehensively.

Can anyone point me to the specific sections of the act which detail the "introduced to the client bit" ? Ideally an online doc with section/subsection detail would be helpful.

If you were an office temp and the agency sent you to do the filing on a Monday morning, that is the point of introduction. Becuase you aren't an office temp but someone the client wanted to see before agreeing you could start, that meeting would have been the point of introduction. Therefore, too late, Mr Agent, you can't opt out until your next renewal.

The Regs are written for the office temp which is why it's unclear how it shoud apply to us. That is one of the points PCG and others are discussing with DBERR's current review of the regs. The agency is upset because they will have to offer you a commercially worse contract that limits their handcuff rights and commits them to paying you regardless. Of course you could simply say you'll opt out: you'll still be opted in and if it is ever challenged, the opt-out would be judged invalid anyway.

[TykeMerc]

If you were an office temp and the agency sent you to do the filing on a Monday morning, that is the point of introduction. Becuase you aren't an office temp but someone the client wanted to see before agreeing you could start, that meeting would have been the point of introduction. Therefore, too late, Mr Agent, you can't opt out until your next renewal.

The Regs are written for the office temp which is why it's unclear how it shoud apply to us. That is one of the points PCG and others are discussing with DBERR's current review of the regs. The agency is upset because they will have to offer you a commercially worse contract that limits their handcuff rights and commits them to paying you regardless. Of course you could simply say you'll opt out: you'll still be opted in and if it is ever challenged, the opt-out would be judged invalid anyway.

Thanks Mal I'm aware of all of that, typically the Agent isn't so I want to be able to point them to the relevant sections of the act so that they can get it through their skulls.

[malvolio]

The full regs can be found at

http://www.opsi.gov.uk/si/si2003/20033319.htm

and the bit you want is in para 9 of Clause 32. The key wording is "provided that such notice is given before the introduction or supply of the work-seeker or the person who would be supplied by the work-seeker to do the work, to the hirer"

I think that's pretty unambiguous, but others may disagree. It's the use of the word "or" that the agencies hide behind. It's sloppy drafting, but that is meant to differentiate between the freelancer and the agency temp; the former is covered by "introduction", the latter by "supply". It's not meant to be either/or for the freelancer.

HTH

[TykeMerc]

That's precisely what I was looking for Mal, many thanks, I missed it in a read through which was daft of me, in my defence I've been a tad rushed today.

[Badger]

Hi this is an extract I put in a post to an agent a while ago:

I think the EA regulations are, as with any legislation, open to interpretation, and my comment below is based on Section 32, Application of the Regulations to work-seekers which are incorporated:

"(9) Subject to paragraph (12), paragraphs (1) - (8) shall not apply where a work-seeker which is a company, and the person who is or would be supplied by that work-seeker to carry out the work, agree that they should not apply, and give notice of that agreement to an employment business or agency, provided that such notice is given before the introduction or supply of the work-seeker or the person who would be supplied by the work-seeker to do the work, to the hirer."

So my interpretation of this is that it is necessary to obtain the Opt-Out status agreement before any client introductions (interviews, meetings, etc...) is made, otherwise by default the work-seeker will have and Opt-In status.

[CheeseSlice]

Of course you could simply say you'll opt out: you'll still be opted in and if it is ever challenged, the opt-out would be judged invalid anyway.

This is exactly what I did for my new gig.
I signed the opt-out form knowing that I'd been introduced to the client by the agent beforehand. If it ever becomes an issue I'll reach for the the 'invalid' opt-out card

[BlueElise]

This section below in quotes is from an article ContratorUK's front page
http://www.contractoruk.com/004379.html

These are my thoughts ...

The point is that it doesn't really matter whether you sign up or not, if the agency goes bust you are in trouble. The opt in/out seems to give two items of protection - you can swap agencies at will (that is the bit that annoys the agencies) and they have to pay you even if the client doesn't.

So, are you likely to swap agencies? (probably not)
Do you think the agency is going to withhold payment? (if yes then run away now)
Do you think the client is going to go bust? (if yes, run away)

If you are happy with the job then do it, the agency can always find someone else to do it if you are causing them too much trouble - at the moment it is a buyers market - horrible isn't it?



From the article ...
If you have opted out, the provisions in the agency regulations which say that an agency may not make payment to you contingent on them first being paid by the client. And even if you have not opted out, if the client did not pay the agency, the agency might not have the money to be able to pay you - one thing the regulations don't do is create money to cover the cost of complying with the obligations they impose.

The client may 'go pop'. The agency may 'go pop'. Or the client 'going pop' might trigger the agency to 'go pop'. Whichever way you look at it, your exposure is significantly greater, both in likelihood, and in amount.

This will not of itself affect a handcuff period; but if you did not opt out, then any restriction would be unlawful and unenforceable. However, if the client is rocky, similar risks will apply, whoever you go through, or if you go direct.

[Can sleep at night]

Hi just adding my recruiter tuppenceworth here. I was also very confused on this matter. I am a recruiter who has done mainly perm for 15 years but i am expanding into contract and i wanted to get my facts right.

Being a REC corperate member I rang the REC hotline and they told me that in this instance an introduction is deemed to have taken place when the contractor actually starts. The person I spoke to said that thier (presumably qualified?!) view was because typically more than one contractor is met with before one is selected, a meeting to discuss the project is just that, the introduction isn't deemed to have officially taken place until they actually start the work.

However it is all rather confusing. For example I also asked if I should check ID if they had opted out and I was told (by REC) that i still should because the contractor can opt in at any point in the future and if it was found out retrospectively that I hadn't checked a contractor's ID for a previous contract (even if the were opted out at the time) and there was a problem, then I might be liable...

But as a previous poster stated all this is complete nonsense anyway because if an agency goes pop you are still at risk of not being paid - which lets face it, is the main thing we all worry about - whether you are opted in or not.

But it would be interesting to hear what other , more expereinced contract recruiters say on this issue...