Exclusion Clause - How tight are they?

[IT contract agent]

garbage! if you're a half decent IT contractor earning a decent day rate then opting in makes no sence. And certainly doesn't make sence from a client viewpoint! just out of interest mailman what kind of contractor are you?

[tim123]

My question is, what does "supply services" mean? That sounds very vague.

Legally it's very clear. It anything which isn't goods. (or is it the supply bit that that you have a problem with)

And to me "through another limited company" in that context means through another agency, whereas if I was using my own limited company rather than the umbrella I'm currently with, that would not be the same thing. And for that matter, I've signed the agreement as an individual. My own limited company has signed no such agreement.

No, it means your own limited company. Perhaps your company hasn't signed anything, but you have. The clause can't be expected to be agreed by your limited company, because it might not actually be in existance at the time the agreement is made. The law isn't the ass it is sometimes made out to be. It is perfectly possible to draw up an agreement to cover this eventuality.

The above does not mean that I think the clauses you have quoted are enforcable. Only that your nit-picking with the words is not going to be the reason why it isn't.

tim

[Mailman]

garbage! if you're a half decent IT contractor earning a decent day rate then opting in makes no sence. And certainly doesn't make sence from a client viewpoint! just out of interest mailman what kind of contractor are you?

What do you mean...there is more than one kind of contractor?

Or do you mean was I one of those woofta's going through an brolly (in which case I would agree with you about being a real contractor) or one of those "businessmen" who works under his own limited company?

I have my own limited company, of which my shareholders benefited directly from the agency regs last year after I won my case. Had I been opted out I would most likely still be fighting for my money or given up months ago and took it on the nose.

Mailman

[BillHicksRIP]

So what are the compelling arguments for opting out then IT Contract Agent?

[tim123]

garbage! if you're a half decent IT contractor earning a decent day rate then opting in makes no sence. And certainly doesn't make sence from a client viewpoint! just out of interest mailman what kind of contractor are you?

I can agree with you about not requiring some of the nanning that opting in requires.

But one of the other things that it gives me is much greater certainty that I will be paid. This is worth a lot. Yes, I am big enough to take legal action but frankly I don't want that aggro.

tim

[malvolio]

Because if you opt in then the agency has to treat you as a temporary worker, which involves them in extra administrative overheads and financial risks that they avoid if you're opted out.

OTOH, opting in means that some of the conditions of the contract that would normally be good anti-IR35 pointers (financial risk from possible non-payment, for example, or rework of faults at contractor's risk) are not available. I'd rather have better anti-IR35 defences myself and save around 10% extra tax, but that's just me...

Default for grown ups is to opt out, and opt in at contract signing time, but (I would suggest) only if you are going to be inside IR35 anyway. So, given that IR35 is mainly a voluntary tax these days, opting in would appear to have little or no value.

[Mailman]

Because if you opt in then the agency has to treat you as a temporary worker, which involves them in extra administrative overheads and financial risks that they avoid if you're opted out.

What a load of twaddle

Regardless of your status the agents are required to make sure you are who you say you are. My agents tried this sh1t with me and I told them to go to hell as they already had all the required info about who I was and my qualifications (not to mention credit checks etc). All the agents are doing by quoting this when they want you to opt out is to "trick" you in to opting out, thus making it easier for them to rip you off.

OTOH, opting in means that some of the conditions of the contract that would normally be good anti-IR35 pointers (financial risk from possible non-payment, for example, or rework of faults at contractor's risk) are not available. I'd rather have better anti-IR35 defences myself and save around 10% extra tax, but that's just me...

More twaddle. IR couldnt care less whether you were opted in or out or shake it all about. John Anstell has already given his legal opinion on this matter (in that opting in or out makes absolutely no difference to Gordo).

If Gordo comes for you it will make very little difference whether you are opted in or out. Its as simple as that.

Default for grown ups is to opt out, and opt in at contract signing time, but (I would suggest) only if you are going to be inside IR35 anyway. So, given that IR35 is mainly a voluntary tax these days, opting in would appear to have little or no value.

What, are you in absolute twaddle mode today or what?

Grown ups (especially those in business) should be taking all steps possible to ensure their revenue stream is not affected by dodgy bistards who fail to pay as per your contract.

To not ensure adequate measures are in place to minimise this risk in my opinion makes you a very poor businessman.

Mailman

[IT contract agent]

A candidate opting in would mean no more time spent on admin for me. (to answer who ever made that point)

Opting in means you would appear as an employee of X. Why would you be a contractor if you were to appear as an employee????/ PAYE - all well and good if you are temping in an office or factory and you want to be entitled to the same as perm employees.

I believe the PCG lobbied government so you guys could opt out of the regs - Its contractors who lobbied in order to be able to opt out of them and keep contracting alive. People spouting garbage about opting in is against what the PCG (your own body) recommend....

From the view of a client - there is a few reasons why they use a contractor...one of which is so they are free of the obligations they have to a perm employee - If you opt in the client is potentially exposed to action against them from you.

[Mordac]

Er, it doesn't matter even if you do opt in. The pimp still has a contract with the client. So if the client does agree to take you on direct, the pimp will hit them with a fee.
So you argue all day about whether it's better to opt in (personally I would opt out only in exchange for IR35 friendly clauses) or not, but it's largely irrelevant.

[tim123]

Opting in means you would appear as an employee of X. Why would you be a contractor if you were to appear as an employee????/ PAYE - all well and good if you are temping in an office or factory and you want to be entitled to the same as perm employees.

Not for a limited company it doesn't. An opted in limited company still has an arm's length distance from the emloyer, but all the 'protection' (some of it completely unnecessary) of the regs.

I believe the PCG lobbied government so you guys could opt out of the regs

They did this for a specific reason. They felt that the regs made it impossible for a contractor (or group thereof) to engage the services of professional marketeer for a fee (rather than a salary). They wanted a specific opt out for this, but because it was all added in a rush, they got an opt out for everything.

From the view of a client - there is a few reasons why they use a contractor...one of which is so they are free of the obligations they have to a perm employee - If you opt in the client is potentially exposed to action against them from you.

Not if the Limited Company is interposed, as has been decided by a court.
This is more of that FUD that agencies sell to clients.

tim