Contract Restriction!

[northernladyuk]

Isn't your whole business plan based on something like this?

Oooh, hark at her!

[GillsMan]

That is no excuse. The checks are to protect you, not just for a bit of fun. Get it wrong and it will cost you a lot more than delaying the gig. QDOS can turn it round in a day so isn't going to kill you to get it right.

Not only that, but working without a contract is likely to invalidate insurances, as well as strengthening the agency's hand. Suspect it's too late now, but I hope the OP isn't working sans contract right now...

[DirtyDog]

At 16:55 the agent has sent me a completely different contract headed "TERMS OF ENGAGEMENT WITH A LIMITED COMPANY CONTRACTOR WHO HAS NOT OPTED OUT OF THE CONDUCT REGULATIONS (WITHIN IR35)"

Which now defines the LTD company as providing "the Intermediary Services" and references me as the agency worker.

I have spoken to the agent since and he says that its the only other std contract they have. Although he didnt say why it has taken all day to put a name and address on a STD contract!

Common tactic - refuse to start. Ring the client and tell them that as much as you'd love to start, you can't because the agency have sent the wrong paperwork and you wouldn't be insured to work there without an agreed contract.

Tell the agent that you have explained to the client where the problem lies, and listen while they quickly backtrack and find a new contract that you can agree to. I had the same thing a few years back - agency only offered an opt out or an inside IR35 contract. It was only when I said I'd ring the client and explain why I wasn't there (and rang them on the weekend to get my side of the story in first) that they managed to suddenly find some new version of the contract that Qdos would pass.

[Bones]

Update.....

I removed the offending paragraph about opting out and a few other words and sent the contract back earlier in the week, they moan and winged and played dumb but said their legal dept would review it. They have just come back to me,

We cannot force you to accept either the “opting in” or “opting out” of the conduct regulations

Technically, the conduct regulations do not apply to you in any event:
the regulations are intended to cover workers who are controlled by the client.
skilled professional are not directly controlled by a client.
it’s intended to cover vulnerable people.

There are minimal benefits to opting in to the conduct regulations but there are onerous administrative tasks for both parties(ie the agency & the consultancy)

In conclusion we must ask you to sign either one of the options we have provided without amendment, if we allow any amendments we as an agency risk losing legal support from the REC which is our governing body.

All this because they wont remove the opt out clause from the contract!!! Comments anyone?

[Wanderer]

All this because they wont remove the opt out clause from the contract!!! Comments anyone?

1. Sign the opt out contract and then withdraw the opt out before you start work
2. Report them to the REC for bullying you into signing the opt out
3. Report it to the PCG because they are the ones who lobbied for the opt out which is being abused so much
4. Name and shame the agency here

Alternatively, you can drag the client into this by telling them exactly what the agency is doing.

[malvolio]

Update.....

I removed the offending paragraph about opting out and a few other words and sent the contract back earlier in the week, they moan and winged and played dumb but said their legal dept would review it. They have just come back to me,

We cannot force you to accept either the “opting in” or “opting out” of the conduct regulations

Quite correct. They cop a £50k fine if they do.

Technically, the conduct regulations do not apply to you in any event:

the regulations are intended to cover workers who are controlled by the client.
skilled professional are not directly controlled by a client.
it’s intended to cover vulnerable people.

Bollocks. They are confusing the Agency Conduct Regulations with the Agency Workers Regulations, which deliberately don't have an opt out anyway. And they've just stated that the contract is outside IR35 since there is no D&C...

There are minimal benefits to opting in to the conduct regulations but there are onerous administrative tasks for both parties(ie the agency & the consultancy)

Bollocks. The onus is on them because they have to do more checking. It will have no impact on the consultancy (or the client, come to that).

In conclusion we must ask you to sign either one of the options we have provided without amendment, if we allow any amendments we as an agency risk losing legal support from the REC which is our governing body.

Bollocks. REC doesn't define the legal status of anything and cannot impose sanctions anyway

All this because they wont remove the opt out clause from the contract!!! Comments anyone?

I think they're talking bollocks.

I also think you're dealing with a junior prat who hasn't escalated anything and has dug himself into a hole and is looking at his commission going walkies. An agency with that loose a grasp on their legal position isn't going to last.

Simple solution. As others have said, don't start work and let the agency explain to the client why not - having first explained to them yourself (carefully in writing) quoting chapter and verse as supplied in this thread. Opting out then back in again won't work incidentally, since you would have to have new contract and you're back to square one. And call their bluff - report them to REC

Who is this meathead, anyway...? What does his LinkedIn profile tell you about him?

[malvolio]

1. Sign the opt out contract and then withdraw the opt out before you start work

Won't work. See my other post as to why not.

2. Report them to the REC for bullying you into signing the opt out

Agreed

3. Report it to the PCG because they are the ones who lobbied for the opt out which is being abused so much

Don't bother, I already have. They are well aware of it anyway - what do you propose they do about it that they aren't already doing. Plus the opt out has a genuine purpose to PCG members who use subbies; not everyone is a BOS IT contractor.

4. Name and shame the agency here

Agreed

Alternatively, you can drag the client into this by telling them exactly what the agency is doing.

Agreed, but he already has.

[Bones]

Against advise I started earlier this week, the reason being that I didnt want to look like a problem to the client and I thought I would get more support from him to apply pressure if I was there.
The agent had also agreed there was no problem removing the opt out and just had to get legal to ok the changes.

On balance I thought it is was mostly ignorance by the agent rather than malicious but its a tuff call. They have come out with some bizarre rubbish if they are going to later claim the moral high ground.

I intend to tell the client tomorrow what is going on and I have tried to be reasonable but the agent is taking the p1ss. I cannot continue without a contract to sign, can he apply some pressure.

[Wanderer]

I've not seen the PCG do anything to combat the abuse of the opt out. All I've seen is them working with the agency representatives to lobby for keeping the opt out when the government wanted to abolish the opt out.

Can you point me to an example of what they have done? Have they publicly taken this up with the REC and APSCo? Have they ever investigated a case where the opt out was abused? What was the outcome?

what do you propose they do about it that they aren't already doing.

The PCG's line is that "most members will want to opt out" so they are in denial about the problem affecting their members so I doubt that they will do anything. If they did actually take the problem seriously then I'd suggest that they:

1. Take the matter of the abuse of the opt out up with the REC and APSCo along with a few example cases (plenty are posted on this forum).

2. Insist that Agencies do not offer contracts to non opt-out contractors with terms which are less favourable than the opt-out contract (as the agency have done in this case).

3. Insist that REC and APSCo send clear guidance to agencies to remind them that the opt out status with regards to the Agency Conduct Regulations is in no way related to the worker's status under the Agency Worker Regulations and that misleading people into thinking that the two are related is completely unacceptable.

4. For the REC and APSCo to publish this guidance clearly and in plain language on their website so the agencies can't fall back on their old tricks of denying that they can understand the laws that regulate their business.

[northernladuk]

Against advise I started earlier this week, the reason being that I didnt want to look like a problem to the client and I thought I would get more support from him to apply pressure if I was there.

That would be against advice.

The agent had also agreed there was no problem removing the opt out and just had to get legal to ok the changes.

And if legal say no?

On balance I thought it is was mostly ignorance by the agent rather than malicious but its a tuff call. They have come out with some bizarre rubbish if they are going to later claim the moral high ground.

I intend to tell the client tomorrow what is going on and I have tried to be reasonable but the agent is taking the p1ss. I cannot continue without a contract to sign, can he apply some pressure.

You mean sound like a problem contractor?

You shouldn't have sorted this all before you started. The clients can stomach a delay, they can't stomach contractors on site still complaining about contracts. You could still be a risk and have wasted everyone's time in their eyes.

You have not only this hanging over you but the fact you didn't get it IR35 checked so two issues. I think you have been wrong to start. You haven't got a contract and don't know if it is IR35 friendly or not. I would say you couldn't have handled it any worse than this.