Opt in and opt out...shake it all about...

[BentheBA]

So, Ive had the interview, met the client been offered the gig and now at the contract stage.

Caused havoc to "un-named agency" after I sent back 30 pages of detail they requested in relation to my background etc...BUT didnt sign the opt out document they had sent.

Stated that I had already been "introduced" so no point, then received no less than 3 phone calls from different people escalating up to the "legal rep" within 30 minutes wanting to know why I hadnt signed. Spoke to their legal rep who sent me the wording from the Agency Regs stating "introduction or supply" was vague and that they work on the supply basis

Spoke to PCH legal helpline and searched the forums so pretty clear where I stand i.e. OPTED IN, so my question is not opt in/out BUT more to do with the politics of the situation....

1) As a result of my assumed OPT IN status should I just sign the OPT OUT form and get on with it (which is where Im heading), what implications might that have down the line?

2) Has anyone ever been rejected at contract reference checking stage for no apparent reason (or as a result of opting in??) (my main concern!)

2) Have been told by agency that only 1 contractor out of 2000 has opted in, does this sound right to anyone??????

3) Anyone ever "opted in" prior to a contract renewal/at then end of a contract and what happened?

Stories from the experienced appreciated!

[Wanderer]

1) As a result of my assumed OPT IN status should I just sign the OPT OUT form and get on with it (which is where Im heading), what implications might that have down the line?

Some people here say they do opt out, but I never have because I can't see any point in signing away my company's legal protections and there are sound commercial reasons for not opting out. My advice is that since you've obviously read the sticky and legal opinion and it's still as clear as mud that you should not opt out. Also, remember that it was the PCG who negotiated with the government to include the opt out in the legislation so they can be biased towards opting out.

2) Has anyone ever been rejected at contract reference checking stage for no apparent reason (or as a result of opting in??) (my main concern!)

It would be illegal for the agency to do this but of course you would have a tough time proving that they rejected you due to the opt out refusal. The other nasty trick they pull is giving you a non-IR35 compliant contract if you refuse to opt out, there is no reason to do this other than to coerce you to opt out. It's a typical example of sharp practice by agencies and is one of the reasons they were legislated against in the first place.

2) Have been told by agency that only 1 contractor out of 2000 has opted in, does this sound right to anyone??????

Now you know they are talking nonsense. And you've used 2) twice above. That's not right either.

3) Anyone ever "opted in" prior to a contract renewal/at then end of a contract and what happened?

If you opt out then you cannot withdraw this opt out unless you have not started working OR you start working in a different position, see agency regulations section 32(10),(11). What exactly a "different position" means isn't all that clear and would probably have to be tested in court.

What is clear to me is that you can withdraw the opt-out at any time before you start working for the client. If I got to the point where an agency were being difficult about the opt out situation then I would be tempted to sign the opt out and then withdraw it (in writing and by recorded delivery) just before I started working for the client by which time the contract would be signed and the agency wouldn't be able to withdraw it.

If you are a PCG member then you may want to call their legal help line and get an opinion on what would happen if you withdraw the opt out before you start working for the client as I've described above. I'm not a lawyer.....

Good luck!

[rd409]

The advantages of opting in according to me are the restriction clause, and payment protection. If the rates paid to me are okay, I don't GAS as to what agency charges the client.
Even if you opt in, if the client contracts most often says they cannot take the contractor direct for a certain time period, they would not do that. You can try as hard as you want, there are few companies who want to take that risk. Even if the manager wants you direct to save his budget, the HR would insist they go through the agency, so tough luck on that anyways.
I usually negotiate a weekly invoicing and payments with agencies with higher risk of payment, so there is not a lot money at stake. Furthermore, my insurance covers agency failure for payment, so not a real risk to me. So this is also a non-issue.
Even though most of the folks here swear by the book that opting out does not have any influence on IR35, but I do believe, that if you opt out, you are taking a financial risk in undertaking the work. Also, you are setting the terms of business which are definitely not that of employment, so it might work in your advantage if there is a case. The word to be emphasized here is "might", as this has not yet been tested in court.
I guess this is the reason, why PCG also used to encourage to opt out. Mal can correct me if I am wrong here.

Dave.

[psychocandy]

What is clear to me is that you can withdraw the opt-out at any time before you start working for the client. If I got to the point where an agency were being difficult about the opt out situation then I would be tempted to sign the opt out and then withdraw it (in writing and by recorded delivery) just before I started working for the client by which time the contract would be signed and the agency wouldn't be able to withdraw it.

If you are a PCG member then you may want to call their legal help line and get an opinion on what would happen if you withdraw the opt out before you start working for the client as I've described above. I'm not a lawyer.....

Good luck!

Now to do this would be a great laugh and probably totally legal but the agency would go ballistic. would they risk cancelling the contract at this stage and pissing off the client? Probably not.

[Wanderer]

Now to do this would be a great laugh and probably totally legal but the agency would go ballistic. would they risk cancelling the contract at this stage and pissing off the client? Probably not.

I think not too. They would most likely tell you that you couldn't withdraw the opt out and go on in their cuckoo land thinking you were opted out when you weren't.

Stuff them though - if they go pulling stunts trying to force people to opt out then that's what they are going to get in return innit.