Opt out of Conduct of employment agencies 2003 act?

[northernladuk]

I was going to ignore this response due to it being as unqualified as it was short.

I daresay I may be missing a point, but an Opt Out clause was adopted by the agencies in respect of rights for lower paid temps for contractors, and I was wondering if the same could not be adopted in respect of the burden placed on individual private clients when assessing IR35.

If we believe the reform will come to the Private sector, and we believe the clients therein will adopt a safe catch all and place all contractors as inside, and if we the contractors believe we are likely in reality to be outside, then what are the options?

1. Go inside and pick a subsequent fight with client / HMRC to prove otherwise? The results being determined far down the line.
2. Investigate some form of contractual based insurance if you will, to assure the client would be absolved of all IR35 talk no matter when.
3. Any other type of insurance...

Anyway, mine is just a wondering as to what, if anything, could be done to head off at an early stage the negative effects on contractors of private sector reform.

So if there is comment other than tumbleweed response...

Second silliest thing I've read this week.

[Eirikur]

Agency refusing to submit me because I refused to opt out, below what they said about opting out:

3 IR35 Compliance
Not Opting Out of the legislation is considered to be damaging to the contractor’s likelihood of being considered a true business to
business (B2B) supplier of services because:
 The legislation is designed to apply to de facto employees working on a temporary basis and not for small businesses.
 The legislation dictates the terms and conditions upon which the contractor is able to continue its business and prohibits usual
business to business (B2B) arrangements.
 Opting out provides a discernable method for a limited company contractor to distance their business to business (B2B) supply of
professional services from that of doing temporary work in general.
 A business does not require legislation to regulate its working relationship with its customers.

[northernladuk]

And have you sent them a raft articles from IR35 and tax specialist that show none of the above to be true?

Not that it will help as LA are allowed to pick and chose which group they work with I. E. Opt out only but not sure why they have to put all this rubbish out to try justify their decision.

[malvolio]

I'd be tempted to write back and explain that since they clearly have no understanding of the legal background to the business they are in, I would not trust them to handle anything in a professional manner so goodbye. And I will be advising others to do the same.

And with a copy to their account director and the client...

Won't do any good, since they are not in the recruitment business at all but like most other agencies are merely estate agents pretending to be commodities brokers. But still good fun...

[Eirikur]

And have you sent them a raft articles from IR35 and tax specialist that show none of the above to be true?

I did indeed but was ignored

[pauldee]

Out of interest, is there any benefit in getting it confirmed from the agent in an email that you will only be put forward if you agree to opt out? Can the opt out still be legally binding in that case?

[northernladuk]

Out of interest, is there any benefit in getting it confirmed from the agent in an email that you will only be put forward if you agree to opt out? Can the opt out still be legally binding in that case?

Eh?

[man]

I did indeed but was ignored

Good on you for trying to educate them - they didn't put it in writing with me (maybe they've updated their process?), merely told me on the phone that I had to opt out otherwise they wouldn't deal with me - they then sent some 'engagement' forms through for me to sign via a web link. Naturally, you couldn't complete these forms without essentially agreeing to the opt out.

So I didn't fill them in (nearly everyone else seems to be able to comply with the law - I also agree with the view that operating illegally on one front suggests that I can expect a less than professional business relationship with them) and haven't heard back since. Wonder how many others have also voted with their feet with this agency and whether the loss of candidates is worth the perceived upsides for them?

[SoleTrader]

So just accepted my first contract pending signing it.

The agent has separately emailed me an Opt Out Declaration.

Agent will act on your behalf as an Employment Business as defined under the Employment Agencies Act 1973.

Following your conversation with me you have advised us you wish to Opt Out of The Conduct of Employment Agencies and Employment Business Regulations 2003. Please find a copy of the Opt Out Declaration attached, please can you sign and return a copy or email me by return to confirm that you accept, understand and agree to the terms of the Opt Out Declaration.

And the declaration itself:

OPT OUT DECLARATION

There is provision in the Conduct Regulations 2003 for companies and those
workers whose services they supply, to opt out of the Conduct Regulations
2003. If you wish to opt out please read this form carefully. You are also
recommended to take independent legal advice.
Date: ………………………………..
Parties: (1) ……………….. …………. (Limited Company)

(2) …………………………… (Service Provider’s Personnel)

1. This Opt Out Notification is supplement to the agreement (“the Agreement”)
between Agent and the Service Provider’s Personnel. The terms
used in this notification shall have the same meaning as those defined in
the Agreement.
2. The Service Provider’s Personnel acknowledge that it is their intention that
the provisions of the Conduct of Employment Agencies & Employment
Businesses Regulations 2003 (the “Conduct Regulations 2003”) do not
apply to the Assignment or to any future assignment agreed between the
parties.
3. The Parties have freely entered into this Opt Out notification.
4. Further that the Service Provider’s Personnel is free to withdraw from this
Opt Out notification at any time by giving not less than one week’s written
notice to Agent. However, where notice is given during
an assignment it will not take effect until the Service Provider’s Personnel
stops working in the position in question.
I, the undersigned have read, understood and agree to be bound by the terms of
this Opt Out Agreement. In particular, I understand that by signing this Opt Out
Agreement I am agreeing that the provisions of the Conduct Regulations 2003
shall not apply.

So I gather I should not opt-out, besides I have already been introduced to the client (phone interview and face to face), the agent only told me about this when I verbally accepted the offer pending signing the contract. "I'm going to send you the opt out agreement bla bla bla..." me: "okay".

Should I inform the agent that I do not wish to opt out, or just simply return the Service Provider Contract only (after review)?

Do QDOS still recommend opting out because of IR35? I was going to get an IR35 review from them for the Service Provider Contract.

Advice would be much appreciated.

[northernladuk]

So just accepted my first contract pending signing it.

The agent has separately emailed me an Opt Out Declaration.



And the declaration itself:



So I gather I should not opt-out, besides I have already been introduced to the client (phone interview and face to face), the agent only told me about this when I verbally accepted the offer pending signing the contract. "I'm going to send you the opt out agreement bla bla bla..." me: "okay".

Should I inform the agent that I do not wish to opt out, or just simply return the Service Provider Contract only (after review)?

Do QDOS still recommend opting out because of IR35? I was going to get an IR35 review from them for the Service Provider Contract.

Advice would be much appreciated.

Have you read this thread?
https://www.contractoruk.com/forums/...-2003-act.html