Opt out of Conduct of employment agencies 2003 act?

[TheFaQQer]

Are they breaking any laws by doing this?

No.

The regulations say that the agent cannot refuse to offer a contract based on whether you opt out or not, but there is nothing to prevent them from putting ridiculous clauses in the contract and only removing them if you play ball.

[northernladuk]

There is no mention of "supply" in the regulations - it's just introduction.

The agent will use the term "introduce" as "we have introduced the person into the workforce, ie they have started work now". The contractor will use the term "introduce" as "we've been introduced to each other, we can identify each other now, but I have not started to work for the client".

Without a legal case, there is much debate about who is right and who is wrong.

Eh? All the guidance goes on about it plenty..

http://www.pcg.org.uk/sites/default/...de_2013_v2.pdf

2.1 OPTING OUT
To opt-out of the regulations, you will have to sign something to this effect
provided by your agency. This will be in the form of a declaration or letter to the
agency from you. You cannot be forced to opt-out. It is best to opt-out before
you are “introduced” to the client (see below) in order for the opt-out to apply. It
may be possible to opt-out before “supply” to the client, but you cannot opt-out
once you have commenced work.

http://www.legislation.gov.uk/uksi/2...0033319_en.pdf

PART IV
Requirements to be satisfied in relation to the introduction or supply
of a work-seeker to a hirer
18. Information to be obtained from a hirer
19. Confirmation to be obtained about a work-seeker
20. Steps to be taken for the protection of the work-seeker and the hirer
21. Provision of information to work-seekers and hirers
22. Additional requirements where professional

Have I missed something here?

[TheFaQQer]

Have I missed something here?

I stand corrected.

However, there is still the confusion over the word "introduce" and also the "or" - the agent will take it as the last possible moment, the contractor will not.

[northernladuk]

I stand corrected.

However, there is still the confusion over the word "introduce" and also the "or" - the agent will take it as the last possible moment, the contractor will not.

Correct and they will use the supply as a catchall anyway as it's not been tested.

[captainjon]

opting back in, in between assignments

I'd originally opted out when i signed my contract, and have been doing on and off work for the client after the initial term
finished.

I've told the agency i want to opt in again before signing a new extension, but they say its impossible because its
with the same client and role, so it wouldnt change. Are they telling the truth? Does my opt out act indefinately for the
old client?

[Sympatico]

I've told the agency i want to opt in again before signing a new extension, but they say its impossible because its with the same client and role, so it wouldnt change. Are they telling the truth? Does my opt out act indefinately for the
old client?

They love it both ways.
I refused to sign any extension, so did the client, because the agents tried to change the notice period. I continued to work and bill under the original contract in which the opt out was invalid for reasons such as not informing the client before supply.
The agency's position was that the opt out became valid on extension.

[SueEllen]

I'd originally opted out when i signed my contract, and have been doing on and off work for the client after the initial term
finished.

I've told the agency i want to opt in again before signing a new extension, but they say its impossible because its
with the same client and role, so it wouldnt change. Are they telling the truth? Does my opt out act indefinately for the
old client?

Of course the agency are going to make things up to suit them.

You don't ask the agency just send them a registered delivery letter from yourself as an individual, and you as director of your company that you have opted back in.

Then when they phone you up just say you are too busy to discuss it on the phone OR simply ignore them that way you will force them to send a reply in writing. Then they can claim it's invalid in email you just point out your legal advice differs. Then don't get into an argument just ignore them because as you have sent the letter you have proof they have received it by the registered delivery receipt and their email response.

It's only an issue if you go to court but if there are no issues with payment and the original handcuff clause is reasonable then it will unlikely be any other issues.

[Sympatico]

just send them a registered delivery letter ... that you have opted back in. It's only an issue if you go to court....

I agree with Sue Ellen, do send the letter before the extension, it won't have any effect if you send it after.

However, there may still be an issue if you want to take advantage of your rights under the regulations
e.g. return to work directly with the same client after a gap of a couple of months.
The agent may still invoice the client for a transfer fee and will they want to fight it?

The conduct regulations state 32 (11) Where a notice [to opt out or to withdraw opt out]... is given to an employment business ... whilst the person ... is ... carrying out the work in a position with a hirer, then the notice shall not take effect until that person stops working in that position.

My understanding is that there is wooliness in the if/how a renewal/extension can cause a change in position with the hirer.

a) I have heard rumours that the DTI issued a statement saying it was possible, but I couldn't find it to check the details
b) it has been said that if the terms of the contract are changed in an extension then that constitutes a change in position
c) if there is no explicit extension contract and the work continues, then it is to be assumed that the original contract terms still apply.

Is this correct? Anyone know more about this?

[SueEllen]

The regulations are as clear as mud so until they are tested in a higher court in a way that fits your circumstances, what they mean can only be guessed at.

[Sympatico]

I was advised by agents to opt-out for IR35 protection

With hindsight, as a business, the only real issue with IR35 is the cost.

I calculated that cost on my last contract, it turned out that (in my case)

RateFromAgency (approx)= RateDirectToClient - IR35cost (fromHMRCwebsite)

But I still had to pay corporation tax on the RateFromAgency.

I now work directly at RateDirectToClient after a long expensive period of being handcuffed.

I would never opt-out.