Opt out of Conduct of employment agencies 2003 act?

[JamesC34]

Opt in used to be an inside IR35 one.

though now there are umbrella firms that insist that you opt out (Because it allows an umbrella to avoid paying out of the agency doesn’t pay).

Really? So can a Ltd opt in and still be outside IR35?

[northernladuk]

I would have thought the Agents reputation with the client would go down the pan very quickly. They have signed with the client too.
It seems like a case of who blinks first.

Nope. This is a requirement of the agency to enter in to business with them. Client won't fall out with an agency just because you aren't signing the right documents.

The agency will blame you for it all and seems it's part of the their onboarding process they've got a very good argument. The only person it will look bad on is you.

Hasn't the almost universal view on this thread been that it is better NOT to opt out?

It does seem odd. I thought that. I didn't know opting out meant an inside contract. Very strange that. But opting in to an employment type legislation never sat well with me so always been out personally.

Wouldn't I be better holding out?

If you don't mind losing the gig.

Let me say it again to you in case you aren't getting it. The legislation is useless to you. You get that? Potentially losing a 100ks worth of billing over a pointless document is just ludicrous. In all my time on here not one single situation that has arisen about notice periods, no payment or anything has been sorted by refering to the legislation so why you are willing to jeapordise a gig over it is beyond me.

I think the agent has more to lose here, in terms of client reputation.

Agency has absolutely nothing to lose here. You have 100k to lose.

My hope is that they let me stay opted in and continue the outside IR35 role. They might insist on re-wording the contract though I guess to make it fit.

You're hope right now is you will have a gig left to go to.

They will never re-word a contract, ever. It has to go via their legal team to get it OK'd etc. The people you speak to are just drones. They are not allowed to change the doc. They will use a contract that's been checked by their lawyers and thats that.

[northernladuk]

What you need to do is open a dialog with the agent. Non of this silly ignoring documents marlarky. Go back to them and tell them you want to stay opt'd in. If, which I suspect will be the case, they say we don't deal with opt in and you must opt out to go ahead then there you have it. You have no choice. Sign or bugger off.

Forget this first to blink, trying to bully the agent and other silly games. You are the only one that is going to lose out here. Agent will blame you and get someone else in, client will grump about idiot contractors and then carry on.

[JamesC34]

Let me say it again to you in case you aren't getting it. The legislation is useless to you. You get that? Potentially losing a 100ks worth of billing over a pointless document is just ludicrous. In all my time on here not one single situation that has arisen about notice periods, no payment or anything has been sorted by refering to the legislation so why you are willing to jeapordise a gig over it is beyond me.

I am not convinced it is useless. Opting out seems to throw obstacles in the way of the client ever offering a permanent role, or at least making it much more costly.

But equally, I do get the overall sense that it might not be the hill to die on.

[northernladuk]

Yes.
I feel they likely lied to me, saying I had no choice but to opt out in order to start the role - which doesn't seem to be true (from reading this thread).
However I realise there are handcuffs in the contract that keep me with the agent for 12 months after contract (which I see from one of your earlier posts on this thread is likely unenforceable anyway).

Ahh.. now we get to it... So they haven't lied to you. That is the terms of engaging with them. It is true, it's their choice and they can make it. Sue Ellen and Cojak both asked BiS if this was discrimiation and both got a different answer but to make that stick you'll have to escalate it. Right now your option is to take the gig on the agents terms or don't. Arguing whether it's legal, which is very complex and confusing, isn't helping.

So, now you know your options. Nothing else to discuss.

12 months is too long and is generally not enforceable but it doesn't mean it can be ignored. If you want to start in 8 months and the agents says no then that's probaly not allowed as it's too long. If you want to start a month later it's likely to come in to play.

[JamesC34]

What you need to do is open a dialog with the agent. Non of this silly ignoring documents marlarky. Go back to them and tell them you want to stay opt'd in. If, which I suspect will be the case, they say we don't deal with opt in and you must opt out to go ahead then there you have it. You have no choice. Sign or bugger off.

Forget this first to blink, trying to bully the agent and other silly games. You are the only one that is going to lose out here. Agent will blame you and get someone else in, client will grump about idiot contractors and then carry on.

Your first paragraph is essentially what has already happened.

Your 2nd paragraph has been formulated without a key bit of info. Without giving too much away, I am in a specialist industry where consultants are quite sought after. ....and the agent competes with other Agencies chasing the same gigs for their clients. I hold more cards than your typical IT contractor for example.

[northernladuk]

I am not convinced it is useless. Opting out seems to throw obstacles in the way of the client ever offering a permanent role, or at least making it much more costly.

Clients shouldn't be offering outside contractors permanent roles. The chances of them offering you one and you even accepting it are slim to nil and is open to negotiation. Again, your opt in status will have absoutely no bearing on this. The client will say I want him, i am not going to pay you a penny extra if you want to keep doing business with us. Agent says fine. Sorted. Same goes with handcuffs etc. All can be sorted by doing business without falling back to legal mumbo jumbo.

You aren't convinced but you have zero evidence it is. Looks good on paper but I've not seen a single instance where it's helped.

But equally, I do get the overall sense that it might not be the hill to die on.

Finally. Understatement of the year that is.

[JamesC34]

Ahh.. now we get to it... So they haven't lied to you. That is the terms of engaging with them. It is true, it's their choice and they can make it. Sue Ellen and Cojak both asked BiS if this was discrimiation and both got a different answer but to make that stick you'll have to escalate it. Right now your option is to take the gig on the agents terms or don't. Arguing whether it's legal, which is very complex and confusing, isn't helping.

I think they have lied. Regulation 32(13) states that the agency should not make the provision of their services conditional on entering into an opt-out.
Opt in, opt out? What the agency regs are all about (part 2) (contractoruk.com).

You probably have a point on the bigger picture though - this probably isn't the hill to die on!

[JamesC34]

Clients shouldn't be offering outside contractors permanent roles. The chances of them offering you one and you even accepting it are slim to nil and is open to negotiation. Again, your opt in status will have absoutely no bearing on this. The client will say I want him, i am not going to pay you a penny extra if you want to keep doing business with us. Agent says fine. Sorted. Same goes with handcuffs etc. All can be sorted by doing business without falling back to legal mumbo jumbo.

I have been offered a permanent role before, so the chances are definitely some way above nil!

Interesting point that the opt out status probably won't have a bearing in the real world.

[northernladuk]

I think they have lied. Regulation 32(13) states that the agency should not make the provision of their services conditional on entering into an opt-out.
Opt in, opt out? What the agency regs are all about (part 2) (contractoruk.com).

You probably have a point on the bigger picture though - this probably isn't the hill to die on!

But if you read the context it talks about different rates of pay i.e there are different conditions for the different choices. Deciding to not deal with opt in's is a business decision and there conditions don't change depending on which one you pick. If you have both they cannot have different conditions, if you you only offer one option then it doesn't apply.

Bit like MOTing a motorbike with indicators. If it has indicators they must all work. If it has no indicators then it's irrelevant