Opt out of Conduct of employment agencies 2003 act?

[northernladuk]

Got an offer on the table, agency sends me contract which automatically opts me out, despite that I told them twice before I do not want to opt out, asked for a version that doesn't opt me out and they come back with the usual BS that this is very unusual and have to renegotiate their contract with the end client. (can this be true?)
they want me to start tomorrow, so I said you better get the non opt out version asap as I won't be going without a contract.
PS I had the draft contract reviewed for IR35 which came back outside of IR35, it had a tick box in it to opt out or not and was assured that the non opt out version would be exactly the same, which I'm starting to doubt now.

I might get a bit of flack for this but... Have a look at the PCG guide...

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

Have a look at section 2.1 part of which says..

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.

So the horse has already bolted in your situation. The agent has cocked up and will probably think they are covered by the 'before supply' comment which I think is wholly wrong. This would be in a case where you are already known from previous engagements. Before introduction would apply to new clients. This hasn't been tested in any form yet so is still a hot topic for debate.

Either way, it's invalid anyway so no point arguing the toss now. Personally I'd just sign and get on with the gig. In the very unlikely event you need to fall back on this you can have that fight later. I don't think at this point jeopardising the gig really helps you at all.

Just wait for Bolshie to come on and tell us we are stupid for bending over and taking it or something.

[theroyale]

Well well, I've just had a contract from an agency that does seem to understand the 'opt' bit of Opt-Out. Their contract arrived with the Opt-Out clause on the last page, when I replied to them saying that I did not want to Opt-Out, they replied straightaway asking me to ignore the last page in that case and return only the rest of the contract.

Was buckling up for a round or two actually..!

[No2politics]

Well well, I've just had a contract from an agency that does seem to understand the 'opt' bit of Opt-Out. Their contract arrived with the Opt-Out clause on the last page, when I replied to them saying that I did not want to Opt-Out, they replied straightaway asking me to ignore the last page in that case and return only the rest of the contract.

Was buckling up for a round or two actually..!

Ha. The exact same thing happened to me today. I found a client direct and they have decided to put me through their preferred agency to administrate everything. Contract had multiple references to opt out, some handcluff clauses and poor payment terms (get paid after agent does). agent advised it would help with IR35 (how kind of them to worry about my tax position) but at the end of the day it was my decision.

[quackhandle]

Got an offer on the table, agency sends me contract which automatically opts me out, despite that I told them twice before I do not want to opt out, asked for a version that doesn't opt me out and they come back with the usual BS that this is very unusual and have to renegotiate their contract with the end client. (can this be true?)
they want me to start tomorrow, so I said you better get the non opt out version asap as I won't be going without a contract.
PS I had the draft contract reviewed for IR35 which came back outside of IR35, it had a tick box in it to opt out or not and was assured that the non opt out version would be exactly the same, which I'm starting to doubt now.

Sanderson were guilty of doing this; two contracts, the opt-out is very IR35 friendly and their "opt-in" version was very, very unfriendly. I pointed out that this was illegal and apologised to the client direct I wouldn't be going with them. Pimp wasn't happy with that.

qh

[No2politics]

Sanderson were guilty of doing this; two contracts, the opt-out is very IR35 friendly and their "opt-in" version was very, very unfriendly. I pointed out that this was illegal and apologised to the client direct I wouldn't be going with them. Pimp wasn't happy with that.

qh

Agent came back to me with some of the IR35 friendly contract terms removed. Are they breaking any laws by doing this? Any references I can read up on. I have read this entire thread and it would appear there are within their rights to do this?

What about restrictions that say the end client must pay a fee if I go direct or through another agency within 8 weeks after contract ending? Since I found this contract direct im tempted to get the client involved to help get this restriction removed

[meridian]

Agent came back to me with some of the IR35 friendly contract terms removed. Are they breaking any laws by doing this? Any references I can read up on. I have read this entire thread and it would appear there are within their rights to do this?

What about restrictions that say the end client must pay a fee if I go direct or through another agency within 8 weeks after contract ending? Since I found this contract direct im tempted to get the client involved to help get this restriction removed

If you found the contract direct, definitely tell the agency to do one and get that clause removed. The client should be on your side for this one as well.

[quackhandle]

Agent came back to me with some of the IR35 friendly contract terms removed. Are they breaking any laws by doing this? Any references I can read up on. I have read this entire thread and it would appear there are within their rights to do this?

What about restrictions that say the end client must pay a fee if I go direct or through another agency within 8 weeks after contract ending? Since I found this contract direct im tempted to get the client involved to help get this restriction removed

Someone on here will know more than me (in my case but I walked away), you might have to prove they are changing contract terms JUST BECAUSE you want to stay opted in. Not sure who you can report this to, is it REC?

I'm sure IPSE could help if you are a member.

qh

[mugwumpp]

naivety at play

Ha. The exact same thing happened to me today. I found a client direct and they have decided to put me through their preferred agency to administrate everything. Contract had multiple references to opt out, some handcluff clauses and poor payment terms (get paid after agent does). agent advised it would help with IR35 (how kind of them to worry about my tax position) but at the end of the day it was my decision.

Same story here, but I naively signed the opt-out sent alongside my contract. This will be my first contract (been a permie until now), so when I received the paperwork I (wrongly) assumed the opt out was mandatory (D'oh).

I'm hoping it doesn't stand, considering how I was introduced to the client...directly. I interviewed, offered and accepted on the same day, to then be told their HR department require I use their preferred agency.

Since this will be my first contract, I'd prefer to play the game, so will not be attempting to retract my opt-out. Can anyone confirm if the opt-out is unenforceable or not, considering I knew the client and had verbally accepted the offer before being introduced to the agent?

[northernladuk]

Same story here, but I naively signed the opt-out sent alongside my contract. This will be my first contract (been a permie until now), so when I received the paperwork I (wrongly) assumed the opt out was mandatory (D'oh).

I'm hoping it doesn't stand, considering how I was introduced to the client...directly. I interviewed, offered and accepted on the same day, to then be told their HR department require I use their preferred agency.

Since this will be my first contract, I'd prefer to play the game, so will not be attempting to retract my opt-out. Can anyone confirm if the opt-out is unenforceable or not, considering I knew the client and had verbally accepted the offer before being introduced to the agent?

The rule is before introduction or supply I believe. They will attempt to use the 'supply' get out. Dunno how that works though as I believe it's for people that new the client before as they been introduced, not to be used after introduction in a first client. Agents obviously think the opposite and there is no case law...

So I dunno.

[TheFaQQer]

The rule is before introduction or supply I believe. They will attempt to use the 'supply' get out. Dunno how that works though as I believe it's for people that new the client before as they been introduced, not to be used after introduction in a first client. Agents obviously think the opposite and there is no case law...

So I dunno.

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.