Opt out of Conduct of employment agencies 2003 act?

[jjdarg]

Okay, just read through the whole thread. After 3 months on the bench, I have been offered a role with a healthy day rate (£150/day more than another offer from a bank this week!) via an agency with a Gov dept (but not under CL1).

I've been sent over the draft contract which has a clause:

The Intermediary warrants that the Contractor has opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Intermediary = MyCo, Contractor = Me.

I would prefer not to opt out, but there is a clause about fixing any errors at my own cost, which I suspect would not be part of an opted-in contract, and is very IR35 friendly from what I can gather.

Already been introduced to client without an opt out.

I am thinking of the following tack:

1. being opted-out in the agent's eyes, and
2. maybe negotiating the handcuff clause down or perhaps asking for a provision that if the Agency falls off of the PSL - which seems likely given the centralising tendency in gov't procurement right now - then the handcuff clause does not apply

(although, I'm not so sure I would necessarily want to be with the client beyond the potential 2-year engagement anyway as it is a one-off programme and I prefer it like that)

I don't see too much payment risk as it is a large agency, and the client is Gov.

Any thoughts on this?


Also, would the opt out clause in the contract override any failure to opt out? i.e., does signing the contract mean opting out? Despite not having opted out prior to introduction?

[malvolio]

Okay, just read through the whole thread. After 3 months on the bench, I have been offered a role with a healthy day rate (£150/day more than another offer from a bank this week!) via an agency with a Gov dept (but not under CL1).

I've been sent over the draft contract which has a clause:

The Intermediary warrants that the Contractor has opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Intermediary = MyCo, Contractor = Me.

I would prefer not to opt out, but there is a clause about fixing any errors at my own cost, which I suspect would not be part of an opted-in contract, and is very IR35 friendly from what I can gather.

Already been introduced to client without an opt out.

I am thinking of the following tack:

1. being opted-out in the agent's eyes, and
2. maybe negotiating the handcuff clause down or perhaps asking for a provision that if the Agency falls off of the PSL - which seems likely given the centralising tendency in gov't procurement right now - then the handcuff clause does not apply

(although, I'm not so sure I would necessarily want to be with the client beyond the potential 2-year engagement anyway as it is a one-off programme and I prefer it like that)

I don't see too much payment risk as it is a large agency, and the client is Gov.

Any thoughts on this?


Also, would the opt out clause in the contract override any failure to opt out? i.e., does signing the contract mean opting out? Despite not having opted out prior to introduction?

If you've been offered the gig, it's a little late to be talking about opting out. That has to be done before you're introduced to the client.

However since nobody seems willing to take a case to court, the validity or otherwise of things like handcuff clauses where one or more sides believe you have opted out, whereas the opt out is actually invalid, remains to be tested. I suspect you will be bound by the terms written into the contract that you sign.

If at some later point you then want to use the Regs to modify those clauses, then you will have to go legal, starting with an appeal to the relevant team in BIS.

The opt out has no impact on IR35 at all - except as a bargaining counter to get a more IR35 compliant contract. You can't really have it both ways.

[BolshieBastard]

Okay, just read through the whole thread. After 3 months on the bench, I have been offered a role with a healthy day rate (£150/day more than another offer from a bank this week!) via an agency with a Gov dept (but not under CL1).

I've been sent over the draft contract which has a clause:

The Intermediary warrants that the Contractor has opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Intermediary = MyCo, Contractor = Me.

I would prefer not to opt out, but there is a clause about fixing any errors at my own cost, which I suspect would not be part of an opted-in contract, and is very IR35 friendly from what I can gather.

Already been introduced to client without an opt out.

I am thinking of the following tack:

1. being opted-out in the agent's eyes, and
2. maybe negotiating the handcuff clause down or perhaps asking for a provision that if the Agency falls off of the PSL - which seems likely given the centralising tendency in gov't procurement right now - then the handcuff clause does not apply

(although, I'm not so sure I would necessarily want to be with the client beyond the potential 2-year engagement anyway as it is a one-off programme and I prefer it like that)

I don't see too much payment risk as it is a large agency, and the client is Gov.

Any thoughts on this?


Also, would the opt out clause in the contract override any failure to opt out? i.e., does signing the contract mean opting out? Despite not having opted out prior to introduction?

I dont recommend you sign up to something then try and argue later than what you signed has no effect.

We can debate the finer points of when you were introduced and the opt out but you'll get lots of differing opinions.

Either accept the contract as is ie 'opted out,' or tell the agent that you intend to remain 'opted in.'

Personally, I wouldnt recommend touching Government contracts and you'll likely find you're significantly worse off IR35 caught if your limited co has a co director ie a spouse as you cannot 'share' the income. And before anyone claims otherwise, I had my accountant do a comparision of income for the same day rate IR35 caught and not caught.

If however, your limited only has you, then the difference may not be so big.

[No2politics]

Opt out of Conduct of employment agencies 2003 act?

-phone just posted accidentally and no option to delete. Sorry

[Sturridge]

First time poster (and contractor) so please be nice lol.

Done a lot of reading re this conduct of employment regs 2003 and still not sure either way ha ha.

I know the general consensus is to NOT sign an opt out declaration but I have a few questions that I can't find an answer to.

The contract has an opt out for company and separate opt out for operatives (the worker - me). Within the agreement to opt out they also want me to sign away the fact that at all times I am acting outside scope of AWR. The opt out is for reg 32 if that makes adifference , not the whole regulations. Tried to have a read but it's all legal jargon that I can't make head nor tail of. Gather that's the intention! Haha

My question is if I sign the opt out does the contract elsewhere have to state that I can take up a permie role with x months. Ie. If it doesn't say anything about it in the contract and I opt out am I free to take up permie employment once the contract ceases / runs its course.

Not really fussed about the paying without signature thing as they are a big agency

Any thoughts much appreciated.

[SueEllen]

The actual law is badly written.

In short don't opt out either your company or yourself.

In regards to the agency workers regulations you shouldn't be in scope anyway.

[Sturridge]

The actual law is badly written.

In short don't opt out either your company or yourself.

In regards to the agency workers regulations you shouldn't be in scope anyway.

Hi Sue. Thanks for the reply.

I understand the majority say don't opt out but what trying to find out is will it have a bearing on future permie employment with the client if there is no mention of it in the contract?

[SueEllen]

Hi Sue. Thanks for the reply.

I understand the majority say don't opt out but what trying to find out is will it have a bearing on future permie employment with the client if there is no mention of it in the contract?

It is better for both you and the client to remain opted in, while it's better for the agency that you opt out.

In reality if you are too expensive the client will just employ someone else so both you and the agency will lose out.

In general your statutory rights cannot be overridden by a contract. Though it's better to have a clearly worded contract as if there are any issues it can lead to lawyers being involved with a judge having the final say. This process would be expensive and prolonged which is why you are advised to have all parts of your contract reviewed before hand by a legal expert, not just for IR35, and the implications of any wording explained to you.

[Locoblade]

I'm new to contracting and having read this thread I was pretty much set on declining the EAA opt out, but I've just spoken to my accountant SJD who recommend Ltd Companies do opt out because of IR35 implications.

Very confused, if it's really not an issue with IR35 why are one of the biggest contractor accountancy firms recommending we do?

[Pondlife]

I'm new to contracting and having read this thread I was pretty much set on declining the EAA opt out, but I've just spoken to my accountant SJD who recommend Ltd Companies do opt out because of IR35 implications.

Very confused, if it's really not an issue with IR35 why are one of the biggest contractor accountancy firms recommending we do?

Did you ask them which bits of the opt out they think affects IR35?

If you are paying someone for advice and you're not convinced by what they say, why not ask them to clarify the bit you're not sure about.