Opt-Out as pre-condition of contract! Wow!

[Old Greg]

Still illegal, if you can evidence it...


Yes - at any point up to commencing work

So, one answer is to sign the opt out and then send the retraction / opt in statement on the Sunday before starting on the Monday?

[Ticktock]

So, one answer is to sign the opt out and then send the retraction / opt in statement on the Sunday before starting on the Monday?

A potential problem with that would be if the contract states something along the lines of "This contract is only valid where the Supplier's Representative has agreed to Opt Out...."
If the contract validity is clearly reliant on that you would need a new "Opt In" Contract.

EDIT: And it sounds like that is the case in the example evilagent has called out - one of the clauses of the contract states that the supplier rep has opted out. If you withdraw the Opt Out then you are no longer meeting your side of the contract conditions - technically you're in breach, so the agency has no need to honour their side.

[Old Greg]

A potential problem with that would be if the contract states something along the lines of "This contract is only valid where the Supplier's Representative has agreed to Opt Out...."
If the contract validity is clearly reliant on that you would need a new "Opt In" Contract.

EDIT: And it sounds like that is the case in the example evilagent has called out - one of the clauses of the contract states that the supplier rep has opted out. If you withdraw the Opt Out then you are no longer meeting your side of the contract conditions - technically you're in breach, so the agency has no need to honour their side.

Mal may have a view, but if statute states that opt out can be withdrawn at any point, then does this trump the contract?

In any case, in business terms does it matter? When you withdraw the opt out the agency could terminate the contract for 'no reason', and you then drop an email to the end client expressing your disappointment that the agency has done this at 8 a.m. on the Monday morning and that you would be delighted to discuss other ways in which you may be able to support their business. It's hard to stop the agency acting like this, but a bit of brinkmanship makes it harder for them

[Ticktock]

Mal may have a view, but if statute states that opt out can be withdrawn at any point, then does this trump the contract?

What Mal is (correctly) saying is that the agency can't say "We'll only let you have a contract if you Opt Out".

What I've received a few times in the past is a contract with a page tacked on the back which is the Opt Out - not actually part of the contract, but stapled on the back in the hopes I will think it is. What I'm hearing more of now is the Opt Out becoming part of the contract that is sent, but I haven't seen this for myself.
If you withdraw the Opt Out then you are breaching one of the terms of the contract. You would need a new contract which removes reference to you Opting Out.

I think it's just the agencies trying to find new ways to sneak it past contractors.

In any case, in business terms does it matter? When you withdraw the opt out the agency could terminate the contract for 'no reason', and you then drop an email to the end client expressing your disappointment that the agency has done this at 8 a.m. on the Monday morning and that you would be delighted to discuss other ways in which you may be able to support their business. It's hard to stop the agency acting like this, but a bit of brinkmanship makes it harder for them

Unfortunately, if you withdrew the Opt Out Sunday night / Monday morning, and that Opt Out was a condition of the contract, then the agency could quite rightly say that no, you breached (or possibly withdrew from) the contract. It would be the same as if the contract included a clause saying that you agreed to hold all client info as confidential, and then on the Sunday night emailed the agency to say "Just to let you know, I don't agree with that anymore, so when I get to Client Co I'm going to download their customer lists and put them on EBay".

[LisaContractorUmbrella]

From the regs if it's any help: Regulation 32(13) provides that an employment agency or employment
business may not make the provision of its work-finding services
conditional upon either a limited company or the worker to be supplied
giving notice to opt out of the Regulations

[SueEllen]

Some agencies include the opt-out as part of the contract while others expect you to sign a separate agreement with the contract paperwork.

There are ways of refusing to opt-out in both cases but it depends on who you use to do your contract reviews and sometimes the client.

Also if the agent has very good payment terms then it may be a battle that isn't worth having.

Edited to add: I have never signed a new contract when I have refused to opt-out. The contracts have a couple of clauses that aren't relevant but it clearly states in the contract that if any particular clause is invalid the rest of the terms apply.

[Rudibus ingenious]

IR35 and Opt Out

My pimp is telling me that if I don't opt out I could be investigated by the hmrc

[SueEllen]

My pimp is telling me that if I don't opt out I could be investigated by the hmrc

Tell him you will take that risk.

[NotAllThere]

More than that, it's actually illegal with a defined penalty for any breach. Shop them to the BIS

I read that as More than that, it's actually illegal with the death penalty for any breach

Laugh uproariously and Tell him you will take that risk.

FTFY

[Rudibus ingenious]

I read that as More than that, it's actually illegal with the death penalty for any breach

FTFY

I told him what you said re that it is illegal and he said that you don't know what you are talking about and that if I report him to the bis, he will report me to the hmrc