Reply to: Oh no.. not 'Opt Out' again!

[Beefy198]

Last year, a large agency were investigated by the DBERR because they advertised on jobserve (and in emails) "Please note that all our contractors are obliged to opt out".

Was it Sanderson plc?

Have you ever heard an agent half laugh and say "I don't really understand these rules, but our legal department say......"

WHY don't they understand them? It's their job to! If I can read up on them I'm sure they could too.

[TheFaQQer]

Last year, a large agency were investigated by the DBERR because they advertised on jobserve (and in emails) "Please note that all our contractors are obliged to opt out".

If agencies understood a bit more about the regulations, then it might make all our lives a little bit easier.

I usually stay opted in because I like the freedom of being able to go direct or through a different agency if I want to in the future. Plus the guarantee of being paid is nice, too

[Solidec]

I wont opt out ever, I will just make sure the contract is to my liking and reflects the B2B nature of my business services, which is where Bauer and Cottrell come in. Once I am happy, I sign it and tell the agent where to shove their opt out forms!

Never been an issue, they grumble a bit but they are not legally allowed to enforce an opt out so they can't do much about it.

[Badger]

I've been thinking about this recently as well, and I've up until now always opted out as, like The Faqqer aludes to, it seems to smooth the way with agencies.

However I'm coming round to the idea that Opting-In may be the option to go for as, from my undersanding it kinda guarantees payment and you can go direct much sooner. Sod the additional work the agency has to do.

[TheFaQQer]

Not strictly speaking.. My point is that by having to opt-out of something that relates to employees, then this might suggest your working practices are "employee like"? Expecially if this was the only way you sourced your b2b contracts.

It doesn't relate to employees, it relates to those that have been engaged through an employment agency or employment business.

PCG’s view is that the choice of opting in or out of the Agency Regulations is unlikely to make a major difference to employment status for the purposes of IR35. It is likely that a court may view opting out of the regulations as a minor pointer away from employment but it is unlikely that remaining within the Agency Regulations would form an indicator to employment as “contracts for services” (self-employment) are mentioned in the text of the regulations.

[mailric]

No, because opting out has nothing to do with IR35 - never has, and never will.

The "link" between IR35 and opting out is yet another lie pedalled by ill-informed (or dishonest) agents to get ill-informed contractors to bend to their will. There is nothing in the regulations that impacts IR35 at all, despite what the agencies will tell you.

Not strictly speaking.. My point is that by having to opt-out of something that relates to employees, then this might suggest your working practices are "employee like"? Expecially if this was the only way you sourced your b2b contracts.

[TheFaQQer]

I notice the board's agents are strangely quiet on this one.....

They are too busy clearing their desks.

[expat]

I notice the board's agents are strangely quiet on this one.....

[TheFaQQer]

And as for IR35, regardless of how much weight this has, the very fact that you are having to opt-out of these 'employee' regulations is surely a negative reflection of your working practices?

No, because opting out has nothing to do with IR35 - never has, and never will.

The "link" between IR35 and opting out is yet another lie pedalled by ill-informed (or dishonest) agents to get ill-informed contractors to bend to their will. There is nothing in the regulations that impacts IR35 at all, despite what the agencies will tell you.

[TheFaQQer]

So that said, why can'ty agencies simply change their contracts to be more 'sub-contract like' and not 'employee like'?

Because if they did that, then they are shifting the responsibility of delivery onto themselves.

As an agency / EB, their responsibility for getting the job done ends when they find someone who is available - it's up to the client to ensure that they can do the work, and have the right skills, etc. (which they do at interview, theoretically, or in the early stages of a contract).

If they moved to a sub-contract model, then they would be taking responsibility for ensuring that the body they find can actually do they job, has the skills, would fit with the team etc. etc. which then takes on a whole different sphere of liability for delivery.

[mailric]

And as for IR35, regardless of how much weight this has, the very fact that you are having to opt-out of these 'employee' regulations is surely a negative reflection of your working practices?

[Solidec]

They are too lazy to draft separate contracts for temporary workers and ltd companies respectively. They just peddle the same tulipty template contract to everyone!

[mailric]

You are dealing with an agency with the intent to supply temporary workers which is why I believe the regs apply.... unless I misunderstood what you just said.

Yea, just read through the regs (no, i have nothing better to do) and its pretty clear that a company should be treated as a 'work seeker'.

But that doesnt make sense to me. Everyone in a company doing business 2 business services is effectivley 'seeking work'.

Its only because the Agencies are employment businesses. If they were simply subcontracting the work as say Accenture would perhaps to me, then the regs wouldnt apply. So that said, why can'ty agencies simply change their contracts to be more 'sub-contract like' and not 'employee like'?

I think I might be over thinking about this, but its plssing me off as I don't see any point in it for b2b contracts.

[Solidec]

Agencies use the Opt out to try and peddle terribly written contracts in my experience. They try to bully you into opting out and then stick a ridiculously IR35 unfriendly contract in your face.

I generally get my contract reviewed and altered to suit, and then tell them where to shove their opt out if they wont budge on some clauses.

[Beefy198]

You are dealing with an agency with the intent to supply temporary workers which is why I believe the regs apply.... unless I misunderstood what you just said.