Quick Question: Opting in expected within the Contract

[shanti]

I know the advantages/disadvantages have been much discussed on this forum of opting in/out.

However, is it legal for an agency contract to assume you are opting out by putting the opt-out clause with your contract - is that legal?

I recall reading something/somewhere which indicated that the opt-in/opt-out cannot be put into the contract.

This is what the paragraph says within the contract:

"These terms and conditions are applicable to Limited Company contractors for UK assignments; here the contractor has opted out with respect to the Conduct Regulations. ‘EAA’ means the Employment Agencies Act 1973, and ‘Employment Agency’ and ‘Employment Business’ have the meanings defined by the EAA. ‘Conduct Regulations’ means the Conduct of Employment Agencies and Employment businesses Regulations 2003. ‘Opted Out’ means agreement made between the Contractor and a person to be engaged on the Services, notified to [Agent Name], and having the effect that the Conduct Regulations do not apply in relation to an introduction or engagement."

Can I object by citing something legally, to ensure its removed?

I would prefer to opt-in - its a short contract and there are not IR35 issues - I think I will be better protected if I opt-in.

Welcome your inputs asap as will have to provide feedback immediately to the agency.

[The Wikir Man]

If you don't like the contract, negotiate to have the clause removed. Do not be surprised if they don't like that and change the contract to something IR35 unfriendly as a consequence, to pressure you to opt out.

But given your CUK posting history, I can't wait to see how this one pans out

[northernladuk]

Am loving the classic Bob wording

[Clippy]

Shanti =

[jmo21]

Shanti and SuitsYou should start a comedy IT blog together

[malvolio]

Don't do anything at all and you will be opted in by default, unless you choose to opt out both as a company and personally before you are introduced to the client. Since you have a contract on the table, I'm guessing the client already knows who you are, so the question doesn't actually arise.

[shanti]

Don't do anything at all and you will be opted in by default, unless you choose to opt out both as a company and personally before you are introduced to the client. Since you have a contract on the table, I'm guessing the client already knows who you are, so the question doesn't actually arise.

Thought as much. If the agency introduces you to the client before opting you out - you are considered opted in - I had seen something to that affect on the site, however I am sure the agents legal would argue the toss over the grammar of the law in court - if it came to that.

Probably make senses to get the clause removed from the contract or sent an email to the agent indicating that I consider myself opt'ed in?

[MaryPoppins]

I assume this is an Elan contract.

Don't sign that sheet, just the other one.

[Wanderer]

Tell me though.... Why do agencies put these clauses in the contract when they KNOW full well that they can't be enforced? Is it just a bluff or what?

Then when you point out that they are bang to rights, they go through all this palava of getting the "legal team" involved and pissing around for ages or getting really angry becase this is their "standard contract" and there is no way they can change it for you.

[shanti]

Tell me though.... Why do agencies put these clauses in the contract when they KNOW full well that they can't be enforced? Is it just a bluff or what?

Then when you point out that they are bang to rights, they go through all this palava of getting the "legal team" involved and pissing around for ages or getting really angry becase this is their "standard contract" and there is no way they can change it for you.

Guess what, I did tell him that the opting out should be a separate form to the contract and should not impact the offer.. I may as well have been talking to a brick wall. The response was a 5 min wait whilst he called his legal person (apparently) and then responded with the an adamant "no its not going to change on the contract"... to much "risk" if it does "so take it or leave it".

Makes me wonder if their legal person is right about putting it on the contract and saying it is enforceable? - or if the eyeballs on this site are right and that the contractor is assumed opted-in if they have been introduced to clientco prior to opting out?

They are also insisting on crappy notice periods. One day notice for them and no notice for the contractor. I heard that this was illegal or against agency governing rules as well??

I guess I just will have to suck it up if I want to work with the clientco - I can always leave if really, really need be (slavery ended a couple of generations ago). My preference is to have reciprocal notice periods, if I can't leave - they can't fire.