Opt out of Conduct of employment agencies 2003 act?

[northernladuk]

What happens if the outside IR35 Consultant has signed the contract, but refused to sign the opt out?

Doesn't really work like that. You'll generally be asked if you want to opt out or stay opted in in which case they'll send you some stuff you sign. It's all gone wrong if you are having to refuse to sign stuff. But by then it's pointless anyway as you have already been introduced so too late. A vast majority of status's are incorrect because they were done at the wrong time.

Problem is agents think its done right, we don't and there is no real clarity in case law or anything so it just becomes a complete bun fight either way.

In all the time we've discussed this and had issues with agents not paying the opt in/out status hasn't made a bean of difference to the situation.

Meanwhile the Agency has also signed a contract with the Client, and there is a first day meeting already set up between Client and the Consultant.
Surely the Agency cannot enforce the opt out in this circumstance? They cannot prevent the assignment starting, and they have to pay the Consultant even if they refuse to opt out? After all, contracts have been signed.

Again it's not really about enforcing it. You are asked if you want it or not and they proceed. The slight downside here is some agents refuse to deal with opt in clients. You have to opt out or you don't get a contract. They (arguably) have a right to do this as it's a business decision.

I would be extremely surprised if the situation arises where opt in/out causes an issue with starting a gig. It really shouldn't as it's pretty pointless, unless the agency is one of those that will not take on opt out contractors. Something has gone very wrong if it's got to starting day and you've not sorted this out.

[Lance]

I would be extremely surprised if the situation arises where opt in/out causes an issue with starting a gig. It really shouldn't as it's pretty pointless, unless the agency is one of those that will not take on opt out contractors. Something has gone very wrong if it's got to starting day and you've not sorted this out.

I had an agency within the last 2 years, for a client I was already working for via a different agency, ask me to opt out before they'd issue a contract.
I said I won't opt out, they said fine and sent me an inside IR35 contract to sign instead.

I gave up at that point and signed the opt out. It was worthless to all parties in any case, but they did hold all the cards (well the only card, in this case the card was an outside IR35 contract for a public sector client).

[JamesC34]

Doesn't really work like that. You'll generally be asked if you want to opt out or stay opted in in which case they'll send you some stuff you sign. It's all gone wrong if you are having to refuse to sign stuff. But by then it's pointless anyway as you have already been introduced so too late. A vast majority of status's are incorrect because they were done at the wrong time.

Well it has worked like that. The main contract has been signed by all parties, start time agreed, just the 'opt-out' left to the side ignored and un-signed.
It wasn't so much a case of refusing to sign, more a case of ignoring the opt out form they sent me. I assumed by ignoring it meant I remained opted in.

Problem is agents think its done right, we don't and there is no real clarity in case law or anything so it just becomes a complete bun fight either way.

In all the time we've discussed this and had issues with agents not paying the opt in/out status hasn't made a bean of difference to the situation.

Again it's not really about enforcing it. You are asked if you want it or not and they proceed. The slight downside here is some agents refuse to deal with opt in clients. You have to opt out or you don't get a contract. They (arguably) have a right to do this as it's a business decision.

I would be extremely surprised if the situation arises where opt in/out causes an issue with starting a gig. It really shouldn't as it's pretty pointless, unless the agency is one of those that will not take on opt out contractors. Something has gone very wrong if it's got to starting day and you've not sorted this out.

This doesn't really cover the situation I am in. The agent never asked if I wanted to opt in or opt out, just sent the opt out form for to sign - but I ignored it. Meanwhile the main contract proceeded through with all parties and start date/meetings are in the diary.
Only now at this stage is the agent insisting I must opt out or the role cannot proceed. Not sure how they can say this now contracts have all been signed?

[northernladuk]

Well it has worked like that. The main contract has been signed by all parties, start time agreed, just the 'opt-out' left to the side ignored and un-signed.
It wasn't so much a case of refusing to sign, more a case of ignoring the opt out form they sent me. I assumed by ignoring it meant I remained opted in.

Ignoring legal documentation isn't a very smart thing to do. It can lead to.. well situations like yours.

You are right but the agency may have a no opt in policy in which case there is quite a good chance they'll throw the spanner in the works before you start.

If they sent it you after interview we see that as being after introduction so it's invalid anyway, you are opt'd in. The agency see the 'or supply' bit and consider that as any time before you start. There is no clear directive on it so it's a right mess.

This doesn't really cover the situation I am in. The agent never asked if I wanted to opt in or opt out, just sent the opt out form for to sign - but I ignored it. Meanwhile the main contract proceeded through with all parties and start date/meetings are in the diary.
Only now at this stage is the agent insisting I must opt out or the role cannot proceed. Not sure how they can say this now contracts have all been signed?

Because opt in is part of the agreement between you and the agent. Like signing NDA's or H&S stuff. It's not a legal requirement but is a requirement of that agency to go ahead with that gig. Opting in puts a lot more onus on them. They are obliged to check your educational details and have to pay you if the client doesn't pay them and other stuff and they don't want anything to do with those extra obligations so they refuse to deal with opt in.

The can say it now because it's a requirement. It's like signing a contract, turning up at the clients and not signing the H&S policy. You don't start work until you've done it whatever the contract says.

Sign it, get on with it and don't do it again. It's all pointless anyway.

[northernladuk]

I'm not 100% sure but when I've been asked before it made a difference to which contract they sent me. So when I said opt out they sent me an opt out contract as well as the opt out. I don't know what the difference was between the one they sent me and the opt in one though. I assume there was some difference so the opt in and the contract you signed are likely linked so can't do what you are attempting to do.

[eek]

I'm not 100% sure but when I've been asked before it made a difference to which contract they sent me. So when I said opt out they sent me an opt out contract as well as the opt out. I don't know what the difference was between the one they sent me and the opt in one though. I assume there was some difference so the opt in and the contract you signed are likely linked so can't do what you are attempting to do.

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).

[northernladuk]

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).

Oh! That's interesting. I didn't know that. I wondered what that statement meant on the thread the other day. Why would opting in or out of the agency regs make the contract inside? Or was that their leverage to make sure they never took on an opt in contractor?

[northernladuk]

BTW, James, is this why you want to swap agents as per your other thread?

[JamesC34]

Ignoring legal documentation isn't a very smart thing to do. It can lead to.. well situations like yours.

You are right but the agency may have a no opt in policy in which case there is quite a good chance they'll throw the spanner in the works before you start.

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.

If they sent it you after interview we see that as being after introduction so it's invalid anyway, you are opt'd in. The agency see the 'or supply' bit and consider that as any time before you start. There is no clear directive on it so it's a right mess.

Because opt in is part of the agreement between you and the agent. Like signing NDA's or H&S stuff. It's not a legal requirement but is a requirement of that agency to go ahead with that gig. Opting in puts a lot more onus on them. They are obliged to check your educational details and have to pay you if the client doesn't pay them and other stuff and they don't want anything to do with those extra obligations so they refuse to deal with opt in.

The can say it now because it's a requirement. It's like signing a contract, turning up at the clients and not signing the H&S policy. You don't start work until you've done it whatever the contract says.

Sign it, get on with it and don't do it again. It's all pointless anyway.

Re: Last sentence.
Hasn't the almost universal view on this thread been that it is better NOT to opt out?
Wouldn't I be better holding out?
I think the agent has more to lose here, in terms of client reputation. 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.

[JamesC34]

BTW, James, is this why you want to swap agents as per your other thread?

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).