Opt out of Conduct of employment agencies 2003 act?

[administrator]

Sorry Bromham Boy - the initial posts from new users go into a moderation queue to stop spam on the forum. Have put both your posts through in case they covered other points - feel free to trim or remove content from either.

[Bromham Boy]

I'm just too impatient - sorry.

The agency is now consulting their solicitor.

[cojak]

I am now into my second week working for the end client and the agency is chasing me for the signed declaration, talking about the 'serious ramifications' if I don't sign and saying they cannot do a contract with a ltd company that has not opted out. They do, of course, have the right to instantly terminate the contract.

Presumably, if I sign the declaration with today's date, then it would quite clearly have no legal effect whatsoever. Furthermore, irrespective of the date on such a declaration, the agency could not demonstrate that they received the declaration prior to my introduction to the end client anyway.

If I simply play along with the agency to put an end to the pestering phone calls and emails, would I still defacto be opted in?

Correctomundo!

That bit of paper needs to be signed before you've been introduced by the agencies - it's worthless now (provided you put today's date, obv).

I'm surprised that more agencies don't understand this. Either that or they are hoping that you don't...

[Wanderer]

The agency is now consulting their solicitor.

I always laugh when they come out with stuff like that. They can read the legislation easily enough for themselves, section 32(9) states that you can only opt out when such notice is given before the introduction or supply of the work-seeker.

Since you have been both introduced and supplied to the client, there is now no possibility for you to opt out if you haven't done so already.

I'm wondering if it's possible that your status is opted out due to the wording of the contract though? Is it possible to have the opt out included in a contract like this? I don't see anything in the law that says it must be done separately.....

Or would an opt out included in a contract be invalid because the worker has already been introduced to the client?

[Bananaman]

Reed uncooperative regarding opt-in

I've had a recent experience with Reed effectively trying to convince/scare/hassle me into opting out of Regulation 32, paragraphs 1-8.

Before receiving the contract I mentioned that I do not wish to sign the opt-out for the regulations. I got put through to a fast-talking agent who, while acknowledging that it was my choice, advised that it would be in my interests to opt-out. In particular he said (paraphrased below):
- It would be detrimental to my IR35 argument (From what I've read this is untrue)
- It would make me liable to additional tax implications. (He was vague and I was driving at the time)
- That Reed's standard IR35 contract was unsuitable for those opted-out.

Their contract does state:
"The Intermediary warrants that the Contractor has opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003."

The intermediary apparently being my limited company.

Furthermore, they stated that if I opted out, it was not possible to pay me for this contract via my limited company, so I would have to either:
- Be made a direct employee of Reed, OR
- Go through a separate umbrella company

I cannot believe that it is not possible for them to pay me through my limited company, just that they don't want to as it puts them at risk.

I am aware of the implications of opting out and I understand that it is not in my interests. However, I'm sorry to say that in the interests of an easy life I signed the opt-out and later the contract as it starts very soon.

My question is, does the above constitute "witholding services" unless I opt-out and if so, what industry regulator should I complain to?

[Wanderer]

Furthermore, they stated that if I opted out, it was not possible to pay me for this contract via my limited company, so I would have to either:
- Be made a direct employee of Reed, OR
- Go through a separate umbrella company

I cannot believe that it is not possible for them to pay me through my limited company, just that they don't want to as it puts them at risk.

I refused to opt out and they my agency still pays me though a LTD company. There is no legal legal reason why they can't pay an opted-in contractor though a LTD company.


Furthermore, the agency are not supposed to make their services conditional on the contractor opting out. The agency conduct regulations section 32(13) states

(13) 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 as referred to in paragraph (9), to the agency or employment business.

where the paragraph (9) referred to is the opt out they are trying to get you to agree.

My question is, does the above constitute "witholding services" unless I opt-out and if so, what industry regulator should I complain to?

From what other people here have said it sounds like you will be pissing in the wind and bugger all will come of it. That said, the abuse of the opt out is rife and every complaint helps. Try complaining to any trade association that the agency is a member of, though these associations are on the agency's side not yours. Also complain to the PCG (even if you are not a member) because they were the ones who negotiated this opt out which the agencies use to bully contractors into signing away their rights.

I am aware of the implications of opting out and I understand that it is not in my interests. However, I'm sorry to say that in the interests of an easy life I signed the opt-out and later the contract as it starts very soon.

You can withdraw the opt out at any time before the contract starts. If you really want to strike a blow then withdraw the opt out before you start work and be prepared for a big fight. If the agency then cancel the contract because of this they they may be liable to pay you damages under section 30 of the agency regulations. It's up to you to decide what you do and if you want a quiet life then off you go - I can fully understand that. Choose your battles carefully but when you do take one on, come out fighting and fight to win.

[Bananaman]

Choose your battles carefully but when you do take one on, come out fighting and fight to win.

Many thanks for your thorough response. I'll make the complaints as suggested, but after a week of hassle and irritation (for them too! ), I'll take the quiet life for now, but in future I'll ask these questions up front and walk away if they're not reasonable about it.

[SueEllen]

Many thanks for your thorough response. I'll make the complaints as suggested, but after a week of hassle and irritation (for them too! ), I'll take the quiet life for now, but in future I'll ask these questions up front and walk away if they're not reasonable about it.

The people to complain to are the Department of Business Employment Agency Inspectorate.

You can only get in contact with them by going through the Pay and Work Rights Helpline by telephone. (Their details are on the Direct Gov website.)

If the helpline thinks that the agency has abused their status they will pass your query on to an Employment Agency Inspector. S/he will then email you and you need to give them as much information as possible including any documentation that backs up your claim.

The agency will then be left with 2 choices. Either to terminate you (so you can sue them) or to comply with the Inspector.

The agency I complained about did the latter. Partly as the Employment Agency Inspectorate has the right to go onto the agencies premises and seize documentation and anything else they think they need i.e. computers This in effect stops the agency from working.

Finally, in the worst cases, they can take the directors of the agency to court to get them fined and banned from being directors.

If you do a google you see that the EAI does take agencies to court as a last resort though I don't know of any personal cases like I do with some other regulators.

[Bananaman]

If the helpline thinks that the agency has abused their status they will pass your query on to an Employment Agency Inspector. S/he will then email you and you need to give them as much information as possible including any documentation that backs up your claim.

Thanks SueEllen.

Unfortunately all the insistence from Reed that I could not be paid through my limited company via PAYE if I opted in was only discussed over the phone, not written down, so I guess it would be pretty difficult to prove.

Perhaps if an agency asks for anything unreasonable over the phone it's best to ask for it in writing?

[cojak]

Perhaps if an agency asks for anything unreasonable over the phone it's best to ask for it in writing?

Absolutely. You'll be 'amazed' how this disappears when you ask for written confirmation of these kind of statements.