Opt out of Conduct of employment agencies 2003 act?

[malvolio]

Update on this: Agent is dragging his feet because "New contracts have to be written up because all their other agents opt out.".

This is not a bad role, but it's hardly the greatest ever. In the mean time, I'm getting other calls, interviews etc. If something solid comes along I'm not waiting about, no matter how much I want this role. A good contract that is almost definitely certain is nothing compared to an OK contract that is signed.

It sounds like it's too late to opt out now anyway, so you're in whether the agent likes it or not (to be precise you are always in unless you have correctly opted out a the start of the whole hiring process). It is good that they are using a specific contract of course, but read it very carefully.

[Agent]

As an agent (assuming you are), how do you feel about the paid-when-paid clause? I appreciate it's a bit of a backstop for you (especially for startups with cashflow) but every other industry has no problems with this - a builder has to pay his subbies when they do the work for example.

I am an agent, of 10+ years in IT. So that makes northernladuk a blue arsed...

The paid when paid makes sense for some agencies, like you said it's like that in a lot of industries. As long as you do your due dil and check that he agency has good credit (and the end client) with no CCJ's or any other suspicious activity then you take the risk, just as the agent does.

Personally if I were a contractor, I'd insist on payment terms and avoid pay when paid but that's because I know how long some clients can take to pay. If you can afford to be picky then lucky you, if not then it's a risk.

[Agent]

It sounds like it's too late to opt out now anyway, so you're in whether the agent likes it or not (to be precise you are always in unless you have correctly opted out a the start of the whole hiring process). It is good that they are using a specific contract of course, but read it very carefully.

The reality is that they won't proceed if he's opted in, so it's not a done deal at all. The reason they are dragging their feet is to find someone else, I can almost guarantee it.

[cojak]

The reality is that they won't proceed if he's opted in, so it's not a done deal at all. The reason they are dragging their feet is to find someone else, I can almost guarantee it.

Then it's a good tactic to use if you want to drag it out because you have other irons in the fire. If the other contract falls through you can call the agent and tell him that you've changed your mind and will opt-out.

[Agent]

Then it's a good tactic to use if you want to drag it out because you have other irons in the fire. If the other contract falls through you can call the agent and tell him that you've changed your mind and will opt-out.

True, I'd imagine they'd be well on the way to a replacement by now though. You'd be very lucky if the contract stays open that long. If it does then may be a crappy contract anyway, could be a blessing in disguise

[pauldee]

Update on this: Agent is dragging his feet because "New contracts have to be written up because all their other agents opt out.".

This is not a bad role, but it's hardly the greatest ever. In the mean time, I'm getting other calls, interviews etc. If something solid comes along I'm not waiting about, no matter how much I want this role. A good contract that is almost definitely certain is nothing compared to an OK contract that is signed.

I never did hear back from that job. Got another offer a couple of days later at a higher rate and I've been happily working there for a month now. That agent and agency have gone on my tulip list now.

[Spoiler]

Guess I've opted out then !

In the process of signing off a contract through Reed, and I got a copy of the contract today, along with an accompanying email which stated:

"NB The Opt Out Notice is for opting out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 compliance, as you are not an employee of Reed or the clients.
Please sign both sections of the document before returning please. "

And the contract states:

"The Intermediary warrants that the Contractor has opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003." (the Intermediary being my Ltd).

Not really fussed either way - don't think I will argue the case, so will likely sign it and get on with it. But, it did get me thinking about a suitable reply for a while...

[Eirikur]

Got an offer on the table, agency send me an opt out contract, I told them I never opt out. they say they have to discuss this with the client. I'm a bit puzzled by that, what impact does not opting out have on the end client?

[caffiend]

There is a clear desire by government to protect small businesses from abuse by more powerful organisations. e.g. the plan for the new small business commissioner

Likewise, the conduct regulations were designed as a shark cage to protect individuals and small business contractors.

It seems like the only issue with the CR for small business contractors is the potential perception of the wording re control by the client and its arguable effect on IR35

Imagine there had been an organisation that looked out for the interests of contractors.
They could have lobbied to simply change the CR wording so it explicitly covered business to business relationship with the client as well.
Job Done!

Whoever came up with the complicated badly written opt-out idea has thrown most of us back to sharks.

IANAL - I'm studying law though, which makes me even more dangerous. Also, contract law: not really my field. When I received an 'opted out' contract - my first contract in *mumble* years after being a permie - I went and looked at these regs and read through much of this thread - thanks to all contributors.

I agree with post above. I can't see that there is a need for "... none of the Conduct Regulations apply to this Assignment" (quoted from my contract, my bold) and am not especially happy with being opted out of some of the rights that the Regulations appear to confer. Still, the all important 'paid on invoice terms' (not paid when paid) is there, so guess I'll put up and shut up (especially since I already insisted on re-writing the data protection bit of the agency's registration form to make it DP compliant - that *is* my field, should possibly have charged them for that).

ETA afterthought: On reflection, as a newbie, I thought I could probably get away with this in response to the draft contract:

Dear agency

Thanks for forwarding for review. I think that I would most likely fall INTO IR35 given that I will be under the Client's direction and control and working for them full-time hours. The rights of substitution etc are rather academic as they've hired me personally, even though [Agency] will contract with my limited company.

Please would you forward an 'Opted in' version of the contract as I think this would most likely be more appropriate, particularly as my understanding indicates that agreement for opt out should be obtained before introduction to clients.

Thanks and regards

[DaveB]

IANAL - I'm studying law though, which makes me even more dangerous. Also, contract law: not really my field. When I received an 'opted out' contract - my first contract in *mumble* years after being a permie - I went and looked at these regs and read through much of this thread - thanks to all contributors.

I agree with post above. I can't see that there is a need for "... none of the Conduct Regulations apply to this Assignment" (quoted from my contract, my bold) and am not especially happy with being opted out of some of the rights that the Regulations appear to confer. Still, the all important 'paid on invoice terms' (not paid when paid) is there, so guess I'll put up and shut up (especially since I already insisted on re-writing the data protection bit of the agency's registration form to make it DP compliant - that *is* my field, should possibly have charged them for that).

ETA afterthought: On reflection, as a newbie, I thought I could probably get away with this in response to the draft contract:

Dear agency

Thanks for forwarding for review. I think that I would most likely fall INTO IR35 given that I will be under the Client's direction and control and working for them full-time hours. The rights of substitution etc are rather academic as they've hired me personally, even though [Agency] will contract with my limited company.

Please would you forward an 'Opted in' version of the contract as I think this would most likely be more appropriate, particularly as my understanding indicates that agreement for opt out should be obtained before introduction to clients.

Thanks and regards

The Agency regulations have nothing to do with IR35 or your status as an employee or otherwise. The only real reason for opting in is to (try to) make sure you get paid regardless of whether the agency has been paid. If you have done your homework and done credit checks on the agency and negotiated the payment terms appropriately then opting in or out makes very little difference. Even if you opted in, if they defaulted on payment you'd have to take action to get them to pay up and if they go under you will probably be at the bottom of a very long list of creditors. It's probably the least important bit of the whole contract negotiation process.