Reply to: Screwed over by agent acting unlawfully

[Lewis]

Their advice is not necessarily wrong but it has not yet been tested at court so it is and opinion only and the 'would' should be changed to 'may' or 'could'.

You cannot ignore the regulations. If you do not opt out (in accordance with the requirements of the regs aka properly), you are covered and governed by their provisions.

No, it is not just IPSE that are saying it. But IPSE and others use the word 'would' without any justification. If there is justification, refer to the case law otherwise change the 'would' in your advice.

To be fair to QDOS, they may very well have said 'may' or 'could'. Can't remember exact language, but I remember nothing being absolutely certain.

[tractor]

...

Ok, I see, have never heard that argument before. I've read many times that an opt out is invalid if done after you've been introduced to the client, which has always been the case for me, so I've always assumed my opt out is invalid anyway.

Following the argument above, does this means that if you believe you are out of scope rather than opting out you should simply do nothing? i.e. refuse to sign the opt out form that every agent sends nowadays on the grounds that you don't believe you are in scope in the first place.

Has anyone tried that with an agency? Surely if you want to be out of scope/opted out (is there a practical difference between the two?) then explicitly opting out is a clearer way of doing it?

I've always opted out because that was the advice (at the time I asked) of QDOS; the argument being it would help marginally in an IR35 case. I've always trusted their advice.

Their advice is not necessarily wrong but it has not yet been tested at court so it is and opinion only and the 'would' should be changed to 'may' or 'could'.

You cannot ignore the regulations. If you do not opt out (in accordance with the requirements of the regs aka properly), you are covered and governed by their provisions.

No, it is not just IPSE that are saying it. But IPSE and others use the word 'would' without any justification. If there is justification, refer to the case law otherwise change the 'would' in your advice.

[malvolio]

Ok, I see, have never heard that argument before. I've read many times that an opt out is invalid if done after you've been introduced to the client, which has always been the case for me, so I've always assumed my opt out is invalid anyway.

It's not my argument, although I do understand it. The underlying point is that the Regs apply to a worker engaged by an agency and do not apply to a genuine business. Since I consider myself to own the latter, the Regs have no place in my world.

Following the argument above, does this means that if you believe you are out of scope rather than opting out you should simply do nothing? i.e. refuse to sign the opt out form that every agent sends nowadays on the grounds that you don't believe you are in scope in the first place.

Has anyone tried that with an agency? Surely if you want to be out of scope/opted out (is there a practical difference between the two?) then explicitly opting out is a clearer way of doing it?

Opting out is easy, if you want to do so. When you first contact the agency with your CV you include a separate written statement that both you and YourCo do not wish the Agency Regulations' to apply to any engagement between YourCo and that Agency. End of: you are correctly out of the Regulations. It's the letters sent by the agency after the event that have no value.

Alternatively simply ignore the whole issue. You may well not be opted out, but since you will not be taking any benefit from them, who cares?

I've always opted out because that was the advice (at the time I asked) of QDOS; the argument being it would help marginally in an IR35 case. I've always trusted their advice.

So it's not just IPSE saying that then...

[Lewis]

No, I thought that too but he is using some obscure and obtuse logic that infers that if you ask to be excused from something, you considered that it applied to you in the first place. This is why the conduct regs and opting out is a nonsense in itself.

It is a typically tulip implementation of leglislation that used a scattergun approach when a sniper rifle was required.

At implementation, the government should have legislated that is is illegal for a client company to use an agency to source limited company resources

Ok, I see, have never heard that argument before. I've read many times that an opt out is invalid if done after you've been introduced to the client, which has always been the case for me, so I've always assumed my opt out is invalid anyway.

Following the argument above, does this means that if you believe you are out of scope rather than opting out you should simply do nothing? i.e. refuse to sign the opt out form that every agent sends nowadays on the grounds that you don't believe you are in scope in the first place.

Has anyone tried that with an agency? Surely if you want to be out of scope/opted out (is there a practical difference between the two?) then explicitly opting out is a clearer way of doing it?

I've always opted out because that was the advice (at the time I asked) of QDOS; the argument being it would help marginally in an IR35 case. I've always trusted their advice.

[tractor]

...

Is that not the wrong way round?

No, I thought that too but he is using some obscure and obtuse logic that infers that if you ask to be excused from something, you considered that it applied to you in the first place. This is why the conduct regs and opting out is a nonsense in itself.

It is a typically tulip implementation of leglislation that used a scattergun approach when a sniper rifle was required.

At implementation, the government should have legislated that is is illegal for a client company to use an agency to source limited company resources

[Lewis]

Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker:

Is that not the wrong way round?

[malvolio]

When you consider that for the majority of contractors the reality is that most of their roles will come via the agencies (rightly or wrongly, it makes no difference in practice) the Opt Out question arises all the damn time.
No matter how you try to bury your head in the sand with some mythical idealised business model that 99% of the PCG (now IPSE) members wouldn't recognise.

The actual FACT is that Opting OUT is a dumb business move and the reason we get blackmailed into doing it by numerous agencies is because they were handed the opportunity by your sainted PCG (now IPSE) negotiators.

Yes, it's important for some; basically the people that would tend to use this forum. The point is that there are around half a million contractors that may use agencies and about 25% of them actually do go via agencies for all their work. Around 4 million more that don't. The world is bigger than you think.

And I would remind you that is was a number of IPSE members - not IPSE itself - that asked for the opt out to be made available when they were first announced since it damaged their business if they had to comply with the Agency Regulations. That's the problem with member-led organisations, they tend to do what their members ask.

[TykeMerc]

I'm not stating an opinion on the whys and wherefores, I'm merely highlighting the varying views that are out there. I'm really not interested in arguing the point since you aren't going to listen and your continual harping on about how the opt out is a massive cock up isn't helping. It isn't, and it isn't IPSE's fault that it gets abused and BIS do nothing about it.

But if you elect to opt out of something, you are tacitly accepting that whatever it is applies to you in the first place.

When you consider that for the majority of contractors the reality is that most of their roles will come via the agencies (rightly or wrongly, it makes no difference in practice) the Opt Out question arises all the damn time.
No matter how you try to bury your head in the sand with some mythical idealised business model that 99% of the PCG (now IPSE) members wouldn't recognise.

The actual FACT is that Opting OUT is a dumb business move and the reason we get blackmailed into doing it by numerous agencies is because they were handed the opportunity by your sainted PCG (now IPSE) negotiators.

[TheFaQQer]

Screwed over by agent acting unlawfully

How did you get screwed over?

Invoice for the work and find something else to do.

[tractor]

...

I'm not stating an opinion on the whys and wherefores, I'm merely highlighting the varying views that are out there. I'm really not interested in arguing the point since you aren't going to listen and your continual harping on about how the opt out is a massive cock up isn't helping. It isn't, and it isn't IPSE's fault that it gets abused and BIS do nothing about it.

But if you elect to opt out of something, you are tacitly accepting that whatever it is applies to you in the first place.

I think you are mixing me up with Eek. I am glad the opt out exists. I am glad the implementation was a cock-up. I get free safeguards. But your logic above doesn't help at all. PCG nd the government have decided that we have to be in one camp or another and cannot ignore it. Even if your head is well and truly buried.

However, given that PCG was instrumental in creating the situation, I do think more support for those that do not opt out should be more forthcoming, most especially because it will be with us for a long time to come.

[malvolio]

1. Agreed.
2. Getting a more commercially advantageous contract is more a result of genuine business acumen, nothing to do with the Conduct Regulations and one's opted position. Being inside or out, you have the same opportunity to negotiate your position except wrt payment and handcuff elements. And why, if you don't opt out would you want to give those away?
3. Rubbish.
4. Are you even sure you have that the right way round? You confuse me constantly, let alone someone who is in the dark. Even so, the regs do not apply to those who opt out of them. It has nothing to do with whether your business is genuine. Opting in or out does not make one more, or less sensible. Even courts cannot agree on these matters; I don't even think they have been tested yet, so why you persist in passing yourself off as the all-seeing oracle on this matter and offer your personal opinion as gospel is completely beyond me.

Your assertions that contractors who do not opt out are not sensible and do not run genuine businesses is disingenuous and frankly quite insulting. Especially when you cannot even give accurate advice and you only got one out of four correct in your list above.

For those in this thread that do not know what the Conduct Regulations are, follow this link to find out.

I'm not stating an opinion on the whys and wherefores, I'm merely highlighting the varying views that are out there. I'm really not interested in arguing the point since you aren't going to listen and your continual harping on about how the opt out is a massive cock up isn't helping. It isn't, and it isn't IPSE's fault that it gets abused and BIS do nothing about it.

But if you elect to opt out of something, you are tacitly accepting that whatever it is applies to you in the first place.

[tractor]

...

Possibly true, and it's why I keep banging a drum that they sit up and take notice and f***ing do something about it. However, it is not the opt out that's the problem, it's the persistent abuse of it by the agencies that's the problem. BIS are no help, they say that while misuse of the regulations is an offence, companies are at liberty to deal with whoever they want to so in effect no agency is making opting out a condition of offer.



Asking about the various options certainly is. Asking "what is opt in vs opt out" though..?

Anyway, just to clarify my position, there are several schools of thought at play:

1. Not opting out means that you have some significant legal and commercial safeguards over payment and handcuff clauses
2. Opting out can act as a lever to get a more commercially advantageous contract including conditions that strengthen your position vis-á-vis IR35
3. Genuine contractors with good contracts have no need of the non-opted out protection: they are in business and intend behaving as such.
4. Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker: we are not agency workers and the Regs do not apply to genuine businesses, so any sensible freelance contractor will simply ignore the whole issue as being irrelevant to them.

Pick whichever you fancy, there are valid counter-arguments to each one. FWIW I'm aligned to the last one.

1. Agreed.
2. Getting a more commercially advantageous contract is more a result of genuine business acumen, nothing to do with the Conduct Regulations and one's opted position. Being inside or out, you have the same opportunity to negotiate your position except wrt payment and handcuff elements. And why, if you don't opt out would you want to give those away?
3. Rubbish.
4. Are you even sure you have that the right way round? You confuse me constantly, let alone someone who is in the dark. Even so, the regs do not apply to those who opt out of them. It has nothing to do with whether your business is genuine. Opting in or out does not make one more, or less sensible. Even courts cannot agree on these matters; I don't even think they have been tested yet, so why you persist in passing yourself off as the all-seeing oracle on this matter and offer your personal opinion as gospel is completely beyond me.

Your assertions that contractors who do not opt out are not sensible and do not run genuine businesses is disingenuous and frankly quite insulting. Especially when you cannot even give accurate advice and you only got one out of four correct in your list above.

For those in this thread that do not know what the Conduct Regulations are, follow this link to find out.

[TykeMerc]

Possibly true, and it's why I keep banging a drum that they sit up and take notice and f***ing do something about it. However, it is not the opt out that's the problem, it's the persistent abuse of it by the agencies that's the problem. BIS are no help, they say that while misuse of the regulations is an offence, companies are at liberty to deal with whoever they want to so in effect no agency is making opting out a condition of offer.

No "possibly" at all, it IS made a condition of being put forwards for consideration, but making it stick in law is utterly impossible. You touted the Opt Out as a great achievement of the PCG (now IPSE) but as soon as it turned out to be a total poison chalice you've tried to apply a positive spin to YOUR (yes with your posting history it's clear you're a leading light in the PCG) total balls up.

Asking about the various options certainly is. Asking "what is opt in vs opt out" though..?

Anyway, just to clarify my position, there are several schools of thought at play:

1. Not opting out means that you have some significant legal and commercial safeguards over payment and handcuff clauses
2. Opting out can act as a lever to get a more commercially advantageous contract including conditions that strengthen your position vis-á-vis IR35
3. Genuine contractors with good contracts have no need of the non-opted out protection: they are in business and intend behaving as such.
4. Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker: we are not agency workers and the Regs do not apply to genuine businesses, so any sensible freelance contractor will simply ignore the whole issue as being irrelevant to them.

Pick whichever you fancy, there are valid counter-arguments to each one. FWIW I'm aligned to the last one.

Viewing it as anything OTHER than 1 is utterly stupid from a business perspective, especially with the long history of failed agencies an clients that like to play silly buggers. It's been said many times (even by you) that Opt Out has no bearing on IR35, now you want to backtrack on that.

It's high time you admit the whole Opt Out thing is a monumental feckup created by the PCG (now IPSE) and help people deal with the fallout of your organisations cockup instead of trying to hide behind feeble obfuscations.

[Boney M]

I'd be thankful I am out of there and move one

[malvolio]

llegal maybe, but impossible to prove in practice and incredibly common. There are plenty of agents that ask up front if you will be Opting out and then you don't get an interview for the role, it's impossible to know if they submitted the CV if you refuse to Opt out.

The whole Opt out situation is a massive screwup that was created BY the PCG (now IPSE) and it's been used as a weapon to beat us with ever since.

Possibly true, and it's why I keep banging a drum that they sit up and take notice and f***ing do something about it. However, it is not the opt out that's the problem, it's the persistent abuse of it by the agencies that's the problem. BIS are no help, they say that while misuse of the regulations is an offence, companies are at liberty to deal with whoever they want to so in effect no agency is making opting out a condition of offer.

He's doing some research, but there's contradictory info out there, some of which you've posted, due diligence asking the question is reasonable.

Asking about the various options certainly is. Asking "what is opt in vs opt out" though..?

Anyway, just to clarify my position, there are several schools of thought at play:

1. Not opting out means that you have some significant legal and commercial safeguards over payment and handcuff clauses
2. Opting out can act as a lever to get a more commercially advantageous contract including conditions that strengthen your position vis-á-vis IR35
3. Genuine contractors with good contracts have no need of the non-opted out protection: they are in business and intend behaving as such.
4. Opting out acknowledges that you consider yourself to be in scope of the Agency Regs and that you are an Agency Worker: we are not agency workers and the Regs do not apply to genuine businesses, so any sensible freelance contractor will simply ignore the whole issue as being irrelevant to them.

Pick whichever you fancy, there are valid counter-arguments to each one. FWIW I'm aligned to the last one.