Reply to: Inside IR35 via Umbrella - Conduct of Employment Agencies Regulations 2003 opt-out

[MonkeysUncle]

Indeed.

I declined to sign and asked the agency to remove the opt-out from the contract. A couple of hours later I had a call from someone in their legal team, (politely) asking what my reasons were for opting in. I told her I didn't need a reason to opt in; I was already "in", I would need a reason to opt out, and I didn't have one.

There followed a bit of huffing and puffing from her about how this made things a bit more difficult for them, but to be fair she didn't make a fuss about it and said she'd send me a new contract. Although when I asked whether the new contract would be just the old contract with the opt-out removed, she said no there were some differences. I guess we'll see.

Similar thing here, I have started an inside gig, when they sent the contract to sign (online signing process), the opt out was a part of it. I had to email them to say I cant sign the contract until the removed the opt out. Agent called to say the same, thats its not recommended blah blah blah and also said you need to go on the recommendation of your umbrella. The legal dept then emailed my and my umbrella saying the same.

The umbrella replied and said legally they cannot recommond one option over another and it has to be the contractors choice.
They then moaned that they couldnt change their online process so in the end I had to get in an email to say although I signed the contract I was opting in and they agreed to this.

EDIT: I also laugh when they say..."well all our other contractors signed it"....well good for them....I aint them!

[BlasterBates]

I did have one agent tell me that opting in was a red flag from an IR35 perspective. I asked them to demonstrate how an opted in contract would fall foul of MOO, SDC and RoS and for some reason they couldn't.

If you're opted in then it means you are under the control of the client.

https://www.contractorcalculator.co....n_opt_out.aspx

a limited company contractor accepting on paper that they are controlled by the client and wish to be covered by the regulations is sending a pretty negative message to HMRC about their employment status.

The ideal situation is to not have it mentioned in the contract, but if you specifically refuse to opt out you might leave a paper trail at the agency which states you're under the control of the client. The key here is in the name of the regulations ie. "Employment".

[eek]

I nave recently received a contract where the default was to opt out. By registering with the umbrella company (danbro), they deemed me to have accepted the terms of the contract.

Dodgy as f*** but all that means is Danbro is responsible for paying you for all the hours work. The agency doesn't however have a requirement to pay them.

Which really just shows how stupid all this really is.

[Lance]

I had one agency, and not a small one either, who had 2 contracts. One was outside IR35 and OptOut was mandatory to complete their compliance.
If you didn't opt out you couldnl;t complete the process.


The other contract, which was offered when IO told them I wasn't going to opt out. It was an inside IR35 contract. The actual agent had no control over any of this. It was the compliance department who basically forced the issue.

So whilst they may not have died in a ditch, they would have just not used me.
I was the one not willing to die in a ditch. They're good payers even when the client always pays late.

[philip armstrong]

I did have one agent tell me that opting in was a red flag from an IR35 perspective. I asked them to demonstrate how an opted in contract would fall foul of MOO, SDC and RoS and for some reason they couldn't.

I nave recently received a contract where the default was to opt out. By registering with the umbrella company (danbro), they deemed me to have accepted the terms of the contract.

[northernladuk]

You can't Opt In, only Opt Out... You're in by default.

And experience has shown that most agencies never managd the Opt Out properly, meaning most contractors remain inside the regs anyway.

But until it goes to court and someone gets something as a result of an improper application of the process, its not going to matter a damn anyway.

And the Opt out was negotiated on behalf of small business owners who use independent sub-contractors where the regs put an unnecessary burden on the engagement. It was never meant to allow agencies to ignore a chunk of their responsibilities,; that is just them being selective in their interpretation of the law to save them some effort. And money...

+1 for that, particularly the bold bit. I have yet to see a single instance where a contractor has faced and issue where the opt in/out has made a blind bit of difference. To date it's been absolutely useless whatever your status so I certainly wouldn't be rocking the boat over something that's hasn't helped a jot to date.

It affects handcuff timings but every situation we've had with handcuffs it's not helped and there have still been payment issues around timesheets even when the contractor was opted in. I'd also question if the agency even bothers if you are opted in. They have extra responsibilities which include creating paperwork about the contractor’s suitability for the role and the client’s requirements, completing a Criminal Record Bureau (CRB) check for specific roles and checking the contractor’s qualifications. I've not heard of an agency checking a contractors qualifications for an Opt in role yet.

Bit of a mess really.

[Andy Hallett]

And experience has shown that most agencies never managd the Opt Out properly, meaning most contractors remain inside the regs anyway.

Spot on

[CatBlack]

You can't Opt In, only Opt Out... You're in by default.

Indeed.

I declined to sign and asked the agency to remove the opt-out from the contract. A couple of hours later I had a call from someone in their legal team, (politely) asking what my reasons were for opting in. I told her I didn't need a reason to opt in; I was already "in", I would need a reason to opt out, and I didn't have one.

There followed a bit of huffing and puffing from her about how this made things a bit more difficult for them, but to be fair she didn't make a fuss about it and said she'd send me a new contract. Although when I asked whether the new contract would be just the old contract with the opt-out removed, she said no there were some differences. I guess we'll see.

[malvolio]

You can't Opt In, only Opt Out... You're in by default.

And experience has shown that most agencies never managd the Opt Out properly, meaning most contractors remain inside the regs anyway.

But until it goes to court and someone gets something as a result of an improper application of the process, its not going to matter a damn anyway.

And the Opt out was negotiated on behalf of small business owners who use independent sub-contractors where the regs put an unnecessary burden on the engagement. It was never meant to allow agencies to ignore a chunk of their responsibilities,; that is just them being selective in their interpretation of the law to save them some effort. And money...

[northernladuk]

*Opt Out

I'd be surprised if any agents died in a ditch for this.

Good spot. We've had a couple of threads about agents refusing to Opt in, one of which had Cojak and SueEllen asking BiS. Could the contractor have pushed it harder? We don't know but it sounded pretty firm.

[ladymuck]

I did have one agent tell me that opting in was a red flag from an IR35 perspective. I asked them to demonstrate how an opted in contract would fall foul of MOO, SDC and RoS and for some reason they couldn't.

[Andy Hallett]

This. Plenty of agencies won't deal with Opt In because of the extra paperwork and responsibilities on their side. I believe they are allowed to do this although Cojak and SueEllen got conflicting advice from BiS and someone else to whether it's discriminatory or something like that. But at the end of the day if the agent will only accept Opt In there is nothing you can do about it.

*Opt Out

I'd be surprised if any agents died in a ditch for this.

[northernladuk]

The repercussions could be that the agency pulls the contract - it's unlikely but it's possible.

This. Plenty of agencies won't deal with Opt In because of the extra paperwork and responsibilities on their side. I believe they are allowed to do this although Cojak and SueEllen got conflicting advice from BiS and someone else to whether it's discriminatory or something like that. But at the end of the day if the agent will only accept Opt In there is nothing you can do about it.

[eek]

I'm starting a new gig soon, inside IR35 via umbrella (needs must).

I've been "invited" by the umbrella company to sign the standard opt-out to to these regulations. My understanding has always been that the main purpose of this opt-out was to strengthen my "I'm not under the control of the end client" arguments for IR35 purposes. As this engagement is inside IR35, I can't really see how it would benefit me to opt out.

Am I correct? And what would be the likely repercussions of politely declining to opt out?

The repercussions could be that the agency pulls the contract - it's unlikely but it's possible.

[CatBlack]

It is of no benefit for you to Opt-out.

Thought so. Thanks.