Agency Opt Out Hassle

[Copt Out]

I've received a contract from an agency that is automatically opted out of the Agency regulations. I never chose to opt out (I want to opt in) and have obviously already been introduced to the client. The agency is saying that NONE of their other contractors have ever asked to be opted in and they can't produce an opted in contract because of payroll issues, i.e. they'd have to produce holiday, sickness, PAYE, NI breakdowns etc.

As far as I'm aware there is no obligation for them to do this and I can invoice the same way if my company is opted in or out. My understanding is that if I opt in the only differences are that my company is protected if the client doesn't pay and the non-compete time period is reduced. Also the agency has to do more background checks on me.

The agency have offered to pass my details onto another agency who deal with this client, but apparently this other agency are also querying the opt-in! I haven't been in a contract for a couple of years (working on Plan B) so have things changed?

[Wanderer]

Welcome to the forum, Copt Out. It appears to me that you have been fed a line of complete and utter load of bull tulip by the agency.

I've received a contract from an agency that is automatically opted out of the Agency regulations.

My understanding is that you can't have an opt out included in a contract and that the opt out clause has to be separate, though I don't have a reference for this.

I never chose to opt out (I want to opt in) and have obviously already been introduced to the client.

The opt out must be done before the "introduction or supply" of the worker, see Section 32(9) of the agency regulations. Exactly what is meant by "introduction or supply" is open to debate but many people here say it means you have to opt out before your CV is sent to the client (ie the introduction). Also, if you have not yet started working for the client then you can withdraw the opt out, see Section 32(10 and 11). I would be inclined to fax and post them a letter (recorded delivery) stating that you are withdrawing the opt out and make sure you do this before you start working.

The agency is saying that NONE of their other contractors have ever asked to be opted in and they can't produce an opted in contract because of payroll issues, i.e. they'd have to produce holiday, sickness, PAYE, NI breakdowns etc. As far as I'm aware there is no obligation for them to do this and I can invoice the same way if my company is opted in or out.

You are correct, this is more nonsense from the agency. I'm opted in and I don't have any of that in my contract. The agency don't know what they are talking about.

My understanding is that if I opt in the only differences are that my company is protected if the client doesn't pay and the non-compete time period is reduced. Also the agency has to do more background checks on me.

Correct.

The agency have offered to pass my details onto another agency who deal with this client, but apparently this other agency are also querying the opt-in! I haven't been in a contract for a couple of years (working on Plan B) so have things changed?

No, Agents are still a bunch of crooks.

[craig1]

The agency don't know what they are talking about.

They probably know exactly what they're talking about and want to make it such a pain to "opt in" that you'll just go with it.

[Copt Out]

This is getting ridiculous

They probably know exactly what they're talking about and want to make it such a pain to "opt in" that you'll just go with it.

Craig1 - Yeah of course they do but it's not making this any easier! You won't believe this (well you will!) but they asked for the name of an agency that I've dealt with previously (a few years ago - they were very good) and said we'll do a deal with them. This other other agency (the 3rd agency involved now!) who had no problems with me opting in before are now apparently also not taking on opted in contractors. So that's 3 agencies breaking the law - apparently!

If I sign with the original agency presumably I'm opted in automatically no matter what the contract says as they've already introduced me to the client?

[Hex]

They probably know exactly what they're talking about and want to make it such a pain to "opt in" that you'll just go with it.

Quite possibly.

But I do know some agencies will start talking about temporary worker contracts rather than B2B contracts as soon as you utter the words "opt in". The whole thing is a quagmire of FUD I think. Having the opt out just creates more misunderstanding and more reason for the agency to try to get you to opt out to reduce their work burden and their responsiblity to you.

[cojak]

If I get agent's getting ansty with me over this I tell them that I can't sign immediately as I need to run a credit check and a Company's House WebCheck on them.

I do it anyway but I tell them I am if they're getting stroppy, never fails to get a satisfying response out of them.

It's the only way to deal with agents these days

[Hex]

If I sign with the original agency presumably I'm opted in automatically no matter what the contract says as they've already introduced me to the client?

The trouble with doing this is that this is unclear in the regulations as pointed out by Wanderer above. A lot of people believe this is the case, but it's never been tested in court as far as I know. Whether you can't opt out after "Introduction or Supply" means that the agent can say it's after Supply not Introduction. You have to decide how to interpret it.

Your safest bet is to withdraw your opt out. How about amending the contract and remove the offending sections (if the contract referes to opting out) and then send it back to the agent telling them you are opted in? If the contract doesn't say anything about opting out then you coudl sign the contract and send the agent a letter saying you are withdrawing any opt out as Wanderer has suggested above.

[fragglerock]

Is this a problem that is seen more generally?

Is it then a sensible precaution to act like you will sign the opt out (so you at least get a look at a decent b2b contract) then just fail to sign the opt out or at least get further down the line before making a fuss etc?

[Copt Out]

Is this a problem that is seen more generally?

Is it then a sensible precaution to act like you will sign the opt out (so you at least get a look at a decent b2b contract) then just fail to sign the opt out or at least get further down the line before making a fuss etc?

There isn't a separate opt out. The opt out is a series of clauses in the contract. Does the opt out have to be in a separate document?

[SueEllen]

There isn't a separate opt out. The opt out is a series of clauses in the contract. Does the opt out have to be in a separate document?

No.

The contract can be one contract as long as it states clearly that if you are opted-out these clauses apply.

If it doesn't then you need to find someone to redraft the contract to make it clear those clauses don't apply to you.

If you do a search using the useful search facility, review companies and lawyers names will come up. However I can't recommend anyone as the person I tend to use is in a long holiday.