Non-disclosure agreement and Opt-out before even interviewed - is this normal?

[positivity]

An agency approached me a few weeks ago about a short term contract. I asked the name of the company so I could do some research and they said I needed to sign the NDA document below.

I had an interview with the company yesterday, but I still haven't signed the NDA document. I have never had to sign one before and want to know what I'm getting into.

I read in the forum that an agency can't make you opt out. I use an Umbrella company so does that make the opt out irrelevant anyway?

"The XXX group of companies (“XXX”) including XXX, XXX and XXX is an IT staffing solutions group of companies which provides contract opportunities for IT specialists (the “Consultant”) to provide services either directly or via managed or personal service companies with XXX’s clients or those client’s customers (the client and their customer shall be referred to herein as “Client”).
The Consultant is an individual who wishes to take advantage of opportunities provided by XXX
During the course of using such opportunities, XXX will recommend the Consultant to its Client and will disclose proprietary and confidential information and know-how to the Consultant.
The recommendation of and disclosure of information to the Consultant, allows the Consultant to attend interviews and potentially directly or indirectly carry our services on a specific area or project (each an “Assignment”) for the Client.
As a result of the above XXX is only willing to provide such opportunities to the Consultant in consideration for the mutual obligations set out herein (the “Agreement”)
In consideration providing the Consultant with the opportunity of the Assignment: The Consultant Agrees that if the application was unsuccessful for a period of 6 months from interview, or if successful for the duration of the Assignment and for a period of 12 months following the conclusion of the Assignment, the Consultant shall not:
(a) be engaged or employed by or provide services to the Client or any third party involved with that Assignment, either directly or indirectly or through another agency or employer, without the prior written consent of XXX;
(b) disclose or discuss any details of the Assignment with any other parties without the prior written consent of XXX. Furthermore, the Consultant shall advise XXX if it is offered any engagement or employment by the Client, including details of any remuneration offered.
The Consultant shall not disclose any proprietary or confidential information it receives or obtains (directly or indirectly) pursuant to an Assignment, save as is required in order to carry out an Assignment. Such information shall include (but is not limited to) any information relating to the business of XXX or Client, the name of Client, the existence of the opportunity or the Client’s requirements.
In order for XXX to provide the Consultant with opportunities to obtain Assignments (which is in the interest of the Consultant), it will be necessary for XXX to forward information about them to Client. The Consultant hereby expressly consents to the processing of its personal data (including any sensitive personal data) held or obtained or collected by XXX and the transfer of this data within the XXX worldwide group of companies, for the operation, administration, security arrangements and legitimate interests of XXX in relation to any Assignment, and in order to fulfil XXX’s obligations to the Consultant and Client.
When pursuing the opportunities offered by XXX, the Consultant confirms the Conduct of Employment Agencies and Employment Businesses Regulations 2003 do not apply to an Assignment. The Consultant is free to opt back in to those Regulations by providing one month written notice. In accordance with the Regulations, if such notice is provided during an Assignment, it shall not take effect until that Assignment is finished.
This Agreement shall bind the Consultant irrespective of whether the Consultant carries out an Assignment via a managed or personal service company or as a sole trader, and shall become binding either (1) on signing this agreement; or 2) by conduct in respect of each Assignment when the Consultant agrees to be put forward for an interview with the Client to seek to obtain that Assignment, whichever of 1 or 2 is sooner.
This Agreement is governed by and to be construed in accordance with the law of the country in which the XXX company that initially presents the opportunity to the Consultant is registered and ultimately is subject to the exclusive jurisdiction of the courts or other competent authority of the country in which the XXX company that is contracted with the consultant is registered.
If any provision of this Agreement is declared by a court or other competent authority to be void or unenforceable, it shall be amended to the minimum amount necessary to obtain validity or enforceability. For the avoidance of doubt, the remaining provisions of this Agreement shall remain in force and effect.
Signed by The Consultant in agreement with the above: Signature:"

[centurian]

Well an opt-out form should be signed before you are introduced to the end client anyway, so it is absolutely correct that they are asking you to consider signing the opt-out now. But they cannot make you sign it.

If you are umbrella, I'd say definately opt-in. The main disadvantage of opting-in is that it might weaken your IR35 status, depending on the circumstances.

The NDA is a bit rich - and they have also included a 6 month handcuff clause - even if you don't get the gig !!!!

[Wanderer]

1. You CANNOT opt out if you are working through an umbrella. Most agencies are too stupid to understand this though.



2. Opt out has nothing to do with IR35 status, but in any case it is irrelevant as you are paying tax as if you were IR35 caught by working through an umbrella

[centurian]

Opt out has nothing to do with IR35 status

Directly, no. But many agents put clauses in which effectively mean it is less IR35 compliant when you opt-in (lack of RoS when opted-in is the normal one).

So it can have an effect, depending on the individual contractual circumstances.

But yes, irrelevant in this case - which was kind of what I was trying to (unsuccessfully) point out - that the only possible disadvantage isn't applicable, so if you're umbrella, you might as well opt-in (or to be precise, decline to opt-out).

[SueEllen]

Directly, no. But many agents put clauses in which effectively mean it is less IR35 compliant when you opt-in (lack of RoS when opted-in is the normal one).

So it can have an effect, depending on the individual contractual circumstances.

There is also nothing stopping you getting a solicitor to tell them to put the clauses back in.

But yes, irrelevant in this case - which was kind of what I was trying to (unsuccessfully) point out - that the only possible disadvantage isn't applicable, so if you're umbrella, you might as well opt-in (or to be precise, decline to opt-out).

If it's irrelevant you just ignore it.

[centurian]

There is also nothing stopping you getting a solicitor to tell them to put the clauses back in.

Of course not, but once again the point was missed.

I said that opting in can have an effect depending on the circumstances, not that it meant an automatic fail, or couldn't be covered - as long as you are aware of the issues.