Can an agency force me to "opt out"?

[tim123]

The clause in the Hay IT contract says:

The company [ thats me ] shall give notice to the EB [ thats hays ] of any agreement reached between the company and the relevant consultant [ both me ] pursuant to the Conduct of EB regs 2003.

Does that mean that if I opt-out I only do so with myself ?

No, it means that both of you tell Hays that you have done so.

(I think)

tim

[Bluebird]

Hays IT

The clause in the Hay IT contract says:

The company [ thats me ] shall give notice to the EB [ thats hays ] of any agreement reached between the company and the relevant consultant [ both me ] pursuant to the Conduct of EB regs 2003.

Does that mean that if I opt-out I only do so with myself ?

[Ardesco]

IANAL but isn't that prima facie evidence of breaking the law? I presume that the authorities would be eager to do something about that....

Not really because the legislation says they cannot refuse you a role if you refuse to opt out. It doesn't say anything about the T&C of the contracts having to be the same weather you are opted in or opted out.

They are still offering you the role so technically speaking they are within the law, they are going totally against the spirit of the legislation though because the condition stating that you should not be refused the role was an attempt to stop agents forcing you to opt out. IR35 just gave the agencies a way to try and force your hand, well done nu liemore.....

[expat]

I believe all S3 group companies have contracts which have clauses in them that depend on you opting out, I know Real Resourcing do for a start.

IANAL but isn't that prima facie evidence of breaking the law? I presume that the authorities would be eager to do something about that....

[Ardesco]

Opt In:

• Agency has to check references.
• Agency has to verify that you have not lied on your resume
• Pay you within a set period of time (4 weeks I think it was) if you have done the work, timesheet or no timesheet.

Opt Out:

• Agency doesn't have to check anything
• Agency doesn't have to pay you in a set amount of time.
• Agency can withhold funds for <insert reason here>

Some people say opting in makes you more likely to be IR35 caught but this is a load of old tosh.

Opt in is the best way to go really.

[Cheshire Cat]

Thanks Ardesco,
Could anyone post a link to a summary?

[Ardesco]

I'm with an S3 group agency, and I signed their opt out clause on the contract (as it wasn't really presented as a choice if I wanted the gig).
To be honest, I have a very vague understanding of what it is I opted out of, so if anyone has a link that explains what it's all about, I'd be grateful.

http://www.opsi.gov.uk/si/si2003/20033319.htm

HTH

[Cheshire Cat]

I'm with an S3 group agency, and I signed their opt out clause on the contract (as it wasn't really presented as a choice if I wanted the gig).
To be honest, I have a very vague understanding of what it is I opted out of, so if anyone has a link that explains what it's all about, I'd be grateful.

[Ardesco]

I can raise it with them, but it might help if we knew who the agency was...

As for the original question, it's your choice to opt out or not and you must not be coereced to do so. Otherwise temp agencies would be forcing their workers to opt out of the regs, which isn't really the idea.

And having been introduced you are opted in, end of.

I believe all S3 group companies have contracts which have clauses in them that depend on you opting out, I know Real Resourcing do for a start.

[malvolio]

If they are telling you that you must opt out in order to get the contract ask them to send you this in writing.

As soon as you have this tell them that you will take them to court if they force you to opt out because what they are doing is completely illegal and suggest that if they don't want to get kicked around in court they should forget about the whole thing.

What most agencies do is provide two different contract templates, one IR35 Friendly and one IR35 caught. They then refuse to give you the IR35 friendly one unless you opt out, strictly speaking it is legal, although it goes against the spirit of the employment business regulations 2003 legislation.

PCG really ought to pick up on this and try and get something done about this flagrant manipulation of the right offered in the employment business regulations 2003.

Come on PCG, flex your legal might!!!

I can raise it with them, but it might help if we knew who the agency was...

As for the original question, it's your choice to opt out or not and you must not be coereced to do so. Otherwise temp agencies would be forcing their workers to opt out of the regs, which isn't really the idea.

And having been introduced you are opted in, end of.

[Ardesco]

If they are telling you that you must opt out in order to get the contract ask them to send you this in writing.

As soon as you have this tell them that you will take them to court if they force you to opt out because what they are doing is completely illegal and suggest that if they don't want to get kicked around in court they should forget about the whole thing.

What most agencies do is provide two different contract templates, one IR35 Friendly and one IR35 caught. They then refuse to give you the IR35 friendly one unless you opt out, strictly speaking it is legal, although it goes against the spirit of the employment business regulations 2003 legislation.

PCG really ought to pick up on this and try and get something done about this flagrant manipulation of the right offered in the employment business regulations 2003.

Come on PCG, flex your legal might!!!

[Gonzo]

I have accepted a new contract, and the agency involved now tell me I "have to" opt out in order for them to deal with me.

There are a number of things I think are wrong here.

1.) They've already introduced me to the client, they've interviewed me and offered me the job. Isn't it too late for this anyway?
2.) Does an agency have the right to choose to only deal with "opted out" contractors?
3.) Should I just opt out anyway, to ensure I can work with this agency in the future (they all seem as underhanded as each other here in London anyway)?

1. Assuming that you have met the client already at an interview type thing, then yes, according to the rules it is too late.

2. They do not have the right, but that does not stop them.

3. I normally do anyway. Given the answer to 1. if it ever came to it, the handcuff clause that is probably in the contract that prevents you going direct to the client, or via another agent when the contract is over would be unenforceable.

That is my view, of course I am not a lawyer so I might well be wrong.

[mcskiver]

I have accepted a new contract, and the agency involved now tell me I "have to" opt out in order for them to deal with me.

There are a number of things I think are wrong here.

1.) They've already introduced me to the client, they've interviewed me and offered me the job. Isn't it too late for this anyway?
2.) Does an agency have the right to choose to only deal with "opted out" contractors?
3.) Should I just opt out anyway, to ensure I can work with this agency in the future (they all seem as underhanded as each other here in London anyway)?