Originally posted by Eirikur
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Opt out of Conduct of employment agencies 2003 act?
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The material prosperity of a nation is not an abiding possession; the deeds of its people are.
George Frederic Watts
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Do you ever just go along with opting out knowing that they've done it wrong and that it's invalid - ie introduced you to the client before bringing it up?Last edited by Robinho; 22 July 2014, 16:28.Comment
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Originally posted by Robinho View PostDo you ever just go along with opting out knowing that they've done it wrong and that it's invalid - ie introduced you to the client before bringing it up?Free advice and opinions - refunds are available if you are not 100% satisfied.Comment
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Originally posted by Wanderer View PostI never willingly opt out. I don't agree with the idea that you can just go along with the opt out because it won't be valid either - I just don't do business that way. It could also be argued in court that the clear intent of both parties was that the opt out should stand and the court may rule that to be the case..Comment
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Originally posted by craig1 View PostI agree entirely. There are a good number of judges who would find in your favour then award you £1 without costs. Yes, you're technically in the right but you also gamed the system by accepting the contract as written despite knowing it was flawed.Comment
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Originally posted by LisaContractorUmbrella View PostI am not sure it would work that way. The default position in law is that the Conduct Regs apply to everyone under certain circumstances - if those circumstances apply then I think any opt-out would be secondary
Edit: In fact, thinking back, the CoA decision revoked the £1 costs award as there's another precedent that if you're awarded less in damages than you're offered in settlement before the case then you will not be awarded costs because you're wasting the court's time.Last edited by craig1; 29 July 2014, 10:11.Comment
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Hmmm. Look at this. Agency swears blind its not opting out but I'm not so sure. This is provided BEFORE interview but then theres the argument that, since you havent signed an opt out before introduction to the client then its invalid anyway.
Even though the clause doesnt say I wish to opt out surely 1a is the same thing?
1) In the event the Company is a personal services company, then the following clauses shall apply:
a) The Company warrants and undertakes that for the purposes of the Agency Workers Regulations 2010 (“Regulations”), (i) the Consultant is not acting in the capacity of an Agency Worker as defined by the Regulations; (ii) the Consultant is not under the supervision and direction of the Client, (though the Consultant is subject to the Client’s reasonable and lawful instructions); (iii) the Client and Experis are both customers of the Company; (iv) it genuinely operates in business of its own account.
b) Accordingly, the Company warrants that the Consultant shall not assert any claim for equal treatment against either the Client or Experis under the Regulations or any other legislation. In the event of any such assertion or claim, the Company shall indemnify Experis on demand, for any claim, costs (including legal costs) incurred by, or awarded against the Client or Experis, in respect of any such claim or allegation by the Consultant.
c) Notwithstanding the provisions of the above clauses, in the event the Consultant claims equal treatment under the Regulations, the Service Fee is deemed to be inclusive of any potential bonus which may or may not be payable, cost of any annual leave entitlement or any other elements of “pay” as defined by the Regulations.Rhyddid i lofnod psychocandy!!!!Comment
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Originally posted by psychocandy View PostHmmm. Look at this. Agency swears blind its not opting out but I'm not so sure. This is provided BEFORE interview but then theres the argument that, since you havent signed an opt out before introduction to the client then its invalid anyway.
Even though the clause doesnt say I wish to opt out surely 1a is the same thing?
1) In the event the Company is a personal services company, then the following clauses shall apply:
a) The Company warrants and undertakes that for the purposes of the Agency Workers Regulations 2010 (“Regulations”), (i) the Consultant is not acting in the capacity of an Agency Worker as defined by the Regulations; (ii) the Consultant is not under the supervision and direction of the Client, (though the Consultant is subject to the Client’s reasonable and lawful instructions); (iii) the Client and Experis are both customers of the Company; (iv) it genuinely operates in business of its own account.
b) Accordingly, the Company warrants that the Consultant shall not assert any claim for equal treatment against either the Client or Experis under the Regulations or any other legislation. In the event of any such assertion or claim, the Company shall indemnify Experis on demand, for any claim, costs (including legal costs) incurred by, or awarded against the Client or Experis, in respect of any such claim or allegation by the Consultant.
c) Notwithstanding the provisions of the above clauses, in the event the Consultant claims equal treatment under the Regulations, the Service Fee is deemed to be inclusive of any potential bonus which may or may not be payable, cost of any annual leave entitlement or any other elements of “pay” as defined by the Regulations.Comment
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Originally posted by Wanderer View PostI never willingly opt out. I don't agree with the idea that you can just go along with the opt out because it won't be valid either - I just don't do business that way. It could also be argued in court that the clear intent of both parties was that the opt out should stand and the court may rule that to be the case..
One of the big problems with opting out is that agents can include clauses in the main contract which would not be allowed if you opt in, particularly clauses over clawback of fees already paid and so on. I have seen some abysmal contracts that transfer all of the risk and more to the contractor. And a court would say 'if you did not wish to be bound by these terms, why did you agree to them?' I'm not a believer too much in the 'unfair contract terms' malarkey. It is far too risky to rely upon and you are at the whim of which side of the bed the judge fell out of this morning.
If you don't opt out, most of the rubbish clauses are negated with a single swipe.Last edited by tractor; 2 August 2014, 09:10.Comment
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Originally posted by mudskipper View PostAgency worker regulations isn't the same thing as Conduct of Employment Agency regulations....Comment
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