Experienced contractor and 'opting out'

[NigelJK]

I'm going back to contracting after a few years as a permie. I've got a contract and the agency (as usual) expects me to 'opt out'. However, I had a bad experience with an Agency previously (4 years ago) when I was approached by a previous client, after about 18 months after finishing with them, to do some more work for him. As it turns out his contract with the agency had a '2 year' rule and they threatened legal action if he didn't play by their rules (which were crap). The whole thing fell through and I had 2 months out of work, over an xmas period.

From there I had one more contract, and I did NOT opt out. The Agency were fine with this. The new agency are telling me that I risk all sorts of trouble if I don't opt out. Is this true or has all of this now been settled and Mr Tax man is happy if you Don't opt out?

[SueEllen]

There are massive stickies about opt-in/opt-out.

The rule is don't opt-out it only serves the agencies purposes. I suggest you tell the agency in an email that you don't want to opt-out as there are no commercial advantages for you for doing so and you are getting the contract reviewed.

Secondly get your contract reviewed for all the clauses not just IR35 ones. Either use a review service like Bauer and Cottrell or a commercial solicitor like Roger of Egos

Both of the ones I've have put links to don't mind putting agents in their place.

[BolshieBastard]

Be aware that if you insisting in opting in, some agencies such as Rullion (Manchester) will not touch you.

[SueEllen]

The main issues with opting-out are:
1. Payment they can refuse to pay you until they get paid.

However depending on the client the upper contract can have a clause stating that they have to pay you within x days. The way to find this out is to get on site and check with the client.

2. Restraint of trade

Most agencies put an unenforceable one in. If you get your contract reviewed if they put an unenforceable one your reviewer will help get them to modify it.

That way the situation you were in with the 2 years won't happen (or it will be when you threaten the agency yourself with court action they will back down.)

Oh and if you are worried about having 2 months without working then you should go permanent.

[NigelJK]

Thanks for the quick replies (and quick posting mods - I was a member ages ago but had to re-register).

Just noticed and read the sticky - thanks for pointing it out
I'm currently getting the 'we've never had an opt in' line ATM, and not seen the 'contract'. I will be telling them that I'm NOT opting out.
I contracted for over 20 years previously and opting out never really effected me either way until that very unhappy xmas. I'm surprised after all this time they still try and pull the wool over peoples eyes.

[NigelJK]

It wasn't the 2 months that worried me, it was that it was over xmas with no chance as no ones hires over that period usually. I could pick and choose my contracts at the time, and if I'd known this was going to bite me then I would have gone elsewhere.

[TheFaQQer]

2. Restraint of trade

Most agencies put an unenforceable one in. If you get your contract reviewed if they put an unenforceable one your reviewer will help get them to modify it.

That way the situation you were in with the 2 years won't happen (or it will be when you threaten the agency yourself with court action they will back down.)

Generally, the problem lies with the client-agency contract rather than the agency-contractor contract.

[ThomserveBAS]

Be aware that if you insisting in opting in, some agencies such as Rullion (Manchester) will not touch you.

I had a hell of a time with Rullion when I started contracting last year - I'd done a fair bit of research about opting in/out and knew what I wanted to do but hit the brick wall with Rullion so ended up opting out - only later did I realise the significance of making that decision after being introduced to the client

[northernladuk]

I had a hell of a time with Rullion when I started contracting last year - I'd done a fair bit of research about opting in/out and knew what I wanted to do but hit the brick wall with Rullion so ended up opting out - only later did I realise the significance of making that decision after being introduced to the client

Both myself and Bolshie have had exactly the same problems with the same group. They blame the clients not wanting opt in contractors in case there is some fall out re tax/NI should our employment status be questions. Don't ask me why as it isn't hard to spot the flaw in this argument but it is their way and they were not going to budge. Didn't come to a final resolution for me as I dropped the gig before we got to the bottom.

[NigelJK]

Apparently I have to send an email stating that my company are happy to 'opt in to IR35'. I've sent an email stating clearly that we are not opting out. Waiting to see the response.