Agencies forcing opt out....

[MaryPoppins]

Just had an email from my friend, who made a complaint to BIS about Capita's attempts to get her to Opt Out - interesting:

if (upon entering into an agreement to be found work, or registering for work through, an employment agency) an agency informs workers, who supply their services through their incorporated company, that the agency only finds work for such workers who have opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, that agency is not contravening the legislation.

If however, an agency subsequently offers a worker a position with a hirer provided that the worker opts out of the
regulations and they withdrew the offer if the worker did not opt out
that would contravene the legislation.

[contractreviews.co.uk]

Just had an email from my friend, who made a complaint to BIS about Capita's attempts to get her to Opt Out - interesting:

if (upon entering into an agreement to be found work, or registering for work through, an employment agency) an agency informs workers, who supply their services through their incorporated company, that the agency only finds work for such workers who have opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, that agency is not contravening the legislation.

If however, an agency subsequently offers a worker a position with a hirer provided that the worker opts out of the
regulations and they withdrew the offer if the worker did not opt out
that would contravene the legislation.

The Employment Agency and Employment Business Regulations 2003 prevents an agency from requiring that the contractor opt out from the Regulation in order to provide its services.

Regulation 32(13) is very clear

“Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement...., to the agency or employment business.”

If you are facing such an issue try to get something in writing from the agency and try to report the issue to APSCo.

In any case, it is good practice to obtain all communication with the agency in writing, or if on the phone send your recruitment consultant an email confirming your conversation.

It will always in case of dispute or litigation.

Mardi

[MaryPoppins]

The Employment Agency and Employment Business Regulations 2003 prevents an agency from requiring that the contractor opt out from the Regulation in order to provide its services.

Regulation 32(13) is very clear

“Neither an agency nor an employment business may make the provision of work-finding services to a work-seeker which is a company conditional upon the work-seeker, and the person who is or would be supplied by the work-seeker to carry out the work, entering into and giving notice of an agreement...., to the agency or employment business.”

If you are facing such an issue try to get something in writing from the agency and try to report the issue to APSCo.

In any case, it is good practice to obtain all communication with the agency in writing, or if on the phone send your recruitment consultant an email confirming your conversation.

It will always in case of dispute or litigation.

Mardi

Thank you for this, I did think that to be the case, too.

My friend, however, has had an email from an Investigations Manager at BIS, who she put a complaint in to. She did not have any written evidence of the agencies refusal to work with her Ltd Co if opted in, unfortunately.

The email from BIS reads fully:

I should explain that the Employment Agency Standards (EAS) Inspectorate
is responsible for enforcing the provisions of the Employment Agencies
Act 1973 and associated regulations. This legislation requires
employment agencies and employment businesses to abide by specified
minimum standards of conduct. Further details about the legislation can
be obtained from our website,
http://www.berr.gov.uk/whatwedo/empl...cies/index.htm
l

I have to inform you that if (upon entering into an agreement to be
found work, or registering for work through, an employment agency) an
agency informs workers, who supply their services through their
incorporated company, that the agency only finds work for such workers
who have opted out of the Conduct of Employment Agencies and Employment
Businesses Regulations 2003, that agency is not contravening the
legislation. If however, an agency subsequently offers a worker a
position with a hirer provided that the worker opts out of the
regulations and they withdrew the offer if the worker did not opt out
that would contravene the legislation.

It might appear from your email that the agency has not withdrawn a job
offer.

In the circumstances, there is little that we can do to take this matter
further.

[TykeMerc]

While Opting Out is officially purely voluntary as we all know since the regulations and Opt out were formed we really don't have a choice to speak of.

The simple fact is if you are asked to Opt out before you're given an interview odds are very high that "someone else" will get selected if you refuse. It's not right, but it's a fact of life when dealing with agencies.

Like many of us I've had to sign opt outs simply to shut the agent up even after an interview and offer, the fact that it's meaningless is irrelevant.

[contractreviews.co.uk]

Hi,

If you feel that you are being pushed to opt out of the Regulations tell your recruitment consultant that your solicitor, legal advisor or accountant is looking into the benefits of opting out of the Regulations.

In the meantime go to the interview and if the client wants a contractor he will ask for that contractor.

You may think that the recruitment consultant has the luxury of choosing whom he likes for his interview but this is not necessarily the case. Remember that in most cases a placement is a race against time. In order to make his commission he will need to be the first to match the right profile to the position. If he does not someone else will.

Simply make sure not to choose the automatic opt out box which can be found in some agencies website during registration.

[jmo21]

Hi,

If you feel that you are being pushed to opt out of the Regulations tell your recruitment consultant that your solicitor, legal advisor or accountant is looking into the benefits of opting out of the Regulations.

In the meantime go to the interview and if the client wants a contractor he will ask for that contractor.

You may think that the recruitment consultant has the luxury of choosing whom he likes for his interview but this is not necessarily the case. Remember that in most cases a placement is a race against time. In order to make his commission he will need to be the first to match the right profile to the position. If he does not someone else will.

Simply make sure not to choose the automatic opt out box which can be found in some agencies website during registration.

In my opinion, in the current contract market for what I do, indicating you plan to have a lawyer etc look at the regs, would be a sure fire way to have your CV chucked in the bin, as being not worth the hassle.

[The Lone Gunman]

Thank you for this, I did think that to be the case, too.

My friend, however, has had an email from an Investigations Manager at BIS, who she put a complaint in to. She did not have any written evidence of the agencies refusal to work with her Ltd Co if opted in, unfortunately.

The email from BIS reads fully:

I should explain that the Employment Agency Standards (EAS) Inspectorate
is responsible for enforcing the provisions of the Employment Agencies
Act 1973 and associated regulations. This legislation requires
employment agencies and employment businesses to abide by specified
minimum standards of conduct. Further details about the legislation can
be obtained from our website,
http://www.berr.gov.uk/whatwedo/empl...cies/index.htm
l

I have to inform you that if (upon entering into an agreement to be
found work, or registering for work through, an employment agency) an
agency informs workers, who supply their services through their
incorporated company, that the agency only finds work for such workers
who have opted out of the Conduct of Employment Agencies and Employment
Businesses Regulations 2003, that agency is not contravening the
legislation. If however, an agency subsequently offers a worker a
position with a hirer provided that the worker opts out of the
regulations and they withdrew the offer if the worker did not opt out
that would contravene the legislation.

It might appear from your email that the agency has not withdrawn a job
offer.

In the circumstances, there is little that we can do to take this matter
further.

You need to send this to someone at the PCG.
I believe this shows that BIS is not interpreting the rags properly.
The regs quite clearly state that an employment business/agent can not make its work finding services only available to those who have opted out.
Stating that they only supply opted out workers in the first place would be a clear breech.
If the case is as stated by the BIS email then there is no reason for every agent to make that statement and the opt out is enforced.

The PCG might be able to tackle this. They may not be aware of that particular interpretation.

[malvolio]

Already on the case...

[MaryPoppins]

Already on the case...

Excellent. The BIS email hasn't been replied to, but I must admit that it didn't sound right to me.

I reluctantly agree with a previous poster who points out how realistically difficult it is to opt in. It is ALWAYS a battle for me if I choose to opt in. If it isn't broached by the agent before interview, it is almost easier not to mention it either, as then I'm opted in.

That's an interesting one though, as the agent always asks for retrospective opt out, and refuses to accept that I am opted in. I am aware that whether I then tick the opt out box or not doesn't really matter, but it's the principle.

My last role was through Elan. I didn't broach the Regs as they hadn't. I attended interview, was offered the role, and rec'd the contract a day or so before I started. The final page of the contract contained a paragraph before the signature line stating something like "I agree that by signing this contract I opt out of the Regs..." I refused to sign the contract on principle and asked for an amendment. They flat refused so I emailed to say I would sign as it was worthless anyway, given that I am opted in. They vigorously argued this but I ended up ignoring them.

If I made a complaint about every agent who tried to force opt out, I wouldn't have time to work. Every agency website I've looked on in the last couple of days claims that opt out is the way to go for all contractors, usually citing IR35 as the reason. Most contractors opt out for an easy life, or because they believe the agencies.

All feels rather futile but I can't seem to let it go...!

[malvolio]

It is futile, but there you go. I've written up the reality on my Blog, based on my own understanding and research plus input from various other plalces. Basically my view is we don't need the regs, we're invariably opted in because the agencies don't understand them and they make sod-all real-world difference to us anyway.

However, if more agencies realised that opt out means no ID checks and opt out means they can charge us rather than the client, things may change...