Opt out of Conduct of employment agencies 2003 act?

[northernladuk]

Hi,
My husband is about to start a new contract on Monday. Of course the "opting out" bit is not a separate sheet (is that legal btw?) but buried among other clauses in the contract. Now, there isn't really enough time to wrangle with the agency over the opt out so if he signs said contract but then sends them an email on Sunday withdrawing from the opt out, would it work? He's the only candidate for the job and the client wants him asap. Would the agency really cancel the contract and lose their fat commission over it? What can the agency actually do to him?

Cheers

Try reading the bloody thread. Jesus.

And why isn't your husband posting. If he is worth his salt at all he will know that as the only candidate he has them over a barrel and can use that to negotiate. If they cancel they don't get the work done so he has them by the short and curlies. Use this fact to get the Opt out sorted.

I have a feeling he hasn't had his contract reviewed for IR35 either has he?

Jeez One facepalm just isn't enough but will have to do

[falkera]

Just got reply from accountant; contract is not IR35 friendly so he'll try to find another one hopefully without the "opt out" clause as well. At which point the husband can send the new contract to the agent. If they refuse to sign it he can approach the client and ask to go through another agency as suggested on this thread (See, I have read it ). That's the plan and I would just like the opinion of experienced contractors.
Husband sick to death with agents and that's why I'm posting and suggested the withdrawal letter. Anything to avoid hearing a load of pointless c**p.

[malvolio]

Just got reply from accountant; contract is not IR35 friendly so he'll try to find another one hopefully without the "opt out" clause as well. At which point the husband can send the new contract to the agent. If they refuse to sign it he can approach the client and ask to go through another agency as suggested on this thread (See, I have read it ). That's the plan and I would just like the opinion of experienced contractors.
Husband sick to death with agents and that's why I'm posting and suggested the withdrawal letter. Anything to avoid hearing a load of pointless c**p.

Offer them the standard PCG contract, via the client if necessary. And the rules regarding how you opt out are perfectly clear, it has to be an independent notification from the worker and their company. It must not be a condition of the contract at any point; if anyone argues differently refer them to the BIS.

[falkera]

Thanks Malvolio
I'll wait and see what the accountant comes up with, at the end of the day that's what he's paid for but I'll keep the PCG contract option in mind in any case.

[malvolio]

Thanks Malvolio
I'll wait and see what the accountant comes up with, at the end of the day that's what he's paid for but I'll keep the PCG contract option in mind in any case.

Fair enough - but remind him the PCG general contract is free to all, and assuming the working practices are sound will be as safe from IR35 as anything can be.

[northernladuk]

Just got reply from accountant; contract is not IR35 friendly so he'll try to find another one hopefully without the "opt out" clause as well. At which point the husband can send the new contract to the agent. If they refuse to sign it he can approach the client and ask to go through another agency as suggested on this thread (See, I have read it ). That's the plan and I would just like the opinion of experienced contractors.
Husband sick to death with agents and that's why I'm posting and suggested the withdrawal letter. Anything to avoid hearing a load of pointless c**p.

There is so much wrong with this I don't know where to start.

Why are you taking advice from an accountant re IR35? Go to a specialist like QDOS or B&C and get it done properly.
Opt Out clauses shouldn't be in the contract anyway, just ask them to give you a contract without these clauses. If they refuse then you kinda know whatever you send them they won't be happy with it.
The chance an agent is going to take on your contract over there's ranges from ultra slim to non. Theirs has been through their legal team and they are happy with it. Your's hasn't and I would expect there isn't anyone there that will be happy to make the decision to use yours. Better to get B&C to negotiate with the agency to modify theirs on your behalf. Remember also that is about working conditions and reality. If your old one failed because it has no substitution clause for example getting another contract that has one is pointless as the client won't accept a substitute. It can say anything you want on the contract but they will ask the client what the reality is.
The client isn't bothered about your tax arrangements so I can't see why they would switch agents just to suit you. It would take a lot of time to get it sorted with the new guys and get you in. The old agent will also kick up a huge fuss and point to some clause that stops the client doing this. They have first dibs on the contract now so very much doubt the client will be able to switch suppliers even if they wanted to. There is also the fact that if you go complaining to the client about your business dealings with the agent they won't be particularly impressed either.

Don't lose a contract just over an opt out clause. It just isn't worth it.

[falkera]

Well, I asked the accountant to check for IR35 friendliness 'coz that's his job to know that isn't it? As I said before job starts on Monday so not much time to negotiate. Incidentally, what if he does start work and the contract is not yet sorted out? Delayed payments are not a problem.
As for switching agents, I meant that possibly the client uses more than one so if agent doesn't want to sign a proper contract another one might. Anyway, husband just rang client and hopefully their personnel dept will sort something out.
Opt out clauses shouldn't be in the contract but they are and speaking of which I just noticed yet another great clause (under indemnity) where if the husband gets done for IR35 he ends up paying the agents' losses too.

[northernladuk]

Well, I asked the accountant to check for IR35 friendliness 'coz that's his job to know that isn't it? As I said before job starts on Monday so not much time to negotiate. Incidentally, what if he does start work and the contract is not yet sorted out? Delayed payments are not a problem.

Absolutely not. His job is to do your accounts at your request, not to dictate your employee status as part of your business. A contract specialist does that. Ok some accountants maybe up to speed with it but they are by no means experts.

As for switching agents, I meant that possibly the client uses more than one so if agent doesn't want to sign a proper contract another one might. Anyway, husband just rang client and hopefully their personnel dept will sort something out.
Opt out clauses shouldn't be in the contract but they are and speaking of which I just noticed yet another great clause (under indemnity) where if the husband gets done for IR35 he ends up paying the agents' losses too.

Which is exactly why you need a specialist to look at your contract and advise what is acceptable. I cannot understand why you are not getting this.

Your contract starts when you are ready and not before. If he turns up on site on Monday there will be no way in hell you can change anything. By turning up you have implicitly accepted the last contract and all it's clauses. You sign it and start WHEN YOU ARE READY and not before. You negotiate a start date based on when you have your ducks in a line. As I said before if he is the only one for the gig it will take them 3-4 weeks to get someone else so they won't can him.

And as I said before be very careful speaking to a client direct. You have absolutely no relationship with him. Your contract is with the agent. There is a very good chance you will a lot more harm than good by pestering them. Tread very carefully.

You really need to step up here.

[malvolio]

Well, I asked the accountant to check for IR35 friendliness 'coz that's his job to know that isn't it?...

Not really, they are to provide advice and bookkeeping, not expert legal opinion

... where if the husband gets done for IR35 he ends up paying the agents' losses too.

Which says a lot about the capability and intelligence of the agency and, to be blunt, your own understanding of a crucial part of being a contractor. Before signing that cause, get them to detail what losses they will suffer as a result of a worker being found to be inside IR35, just so you're clear about the numbers involved.

Hint: there aren't any... End of.

And get the damned contract reviewed by an contracts expert such as Lawspeed or Accountax: on the information seen so far there will be other commercial problems with it, not just IR35 ones.

[falkera]

C'mon guys, have mercy! If I knew all the implications of clauses in contracts, I wouldn't need to be here.