Reply to: conduct regulations

[John Antell]

here is a link to regulation 32...
Conduct of Employment Agencies and Employment Businesses Regulations (Northern Ireland) 2005


some guidance docs
http://www.bis.gov.uk/files/file24248.pdf

The English regulations are here Conduct of Employment Agencies and Employment Businesses Regulations 2003

[TheFaQQer]

Opting in makes it harder for the agent, so they all push for you to opt out.

If you are opted in, then they must pay you for the work you do, regardless of when you invoice and regardless of whether they get paid by the client.

If you are opted in, you can go direct once the contract has finished.

Two reasons why agencies don't want you to opt out, and two good reasons that I would always opt in.

[SueEllen]

Spoke to a good contact at another agency he said it makes no difference to the agency if one is opted In or OUT. He suggested that Opting OUT is preferable for IR35 but not essential and he has contractors who are Opted In and Out.

Advice from QDOS is also to Opt Out, again to ensure one is not caught as being “under control” for IR35.

Mal is one of the resident experts on IR35. If you do a search you will find being opted-in or opted-out makes no difference from an IR35 point of view. It's not a pointer at all.

Plus you can't opt-out now as you have been interviewed by the end-client and they know who you are.

If you opt-out:
1. The agency can refuse to pay you for work you have done
2. They can put clauses in your contract that prevent you from working for the end-client for 6 months.

[Wanderer]

Advice from QDOS is also to Opt Out, again to ensure one is not caught as being “under control” for IR35.

OK, how does opting out of the AGENCY regulations make a worker "under control" of the CLIENT?? I'm surprised they said that, there are loads of professional articles on the web saying that opt-out has NO bearing on IR35.

Ask yourself why the agency are so keen for you to opt out? They only have their own interests to protect, they don't give a tulip about you. Opt out if you like but there are loads of stories on the forum from people who did and then got shafted or would have been in a much stronger position in their fight against the agency had they not opted out.

You could opt out in such a way that it's not legally valid which may seem like a compromise but this will just allow the agency wriggle room to argue the point that the opt out WAS valid - the law is so poorly worded.

[SueEllen]

Off topic, but has anyone see a clause like this one in theri T&Cs before. This is a new one for me:

--------------
RIGHT OF SET-OFF
13.1 The Agency shall be entitled at any time during, or in any event upon termination of this
Assignment Contract, to deduct from the Fees or any other monies owed by the Agency to the
Contractor any overpayments made at any time, or expenses that the End-User disputes,
unrecoverable expenses, Losses, indemnity obligations and/or monies otherwise owed to the
Agency by the Contractor including any costs, fees or expenses: (i) which are paid to or incurred by
the End-User in connection with any services and/or work performed by the Contractor for the End-
User (including the Contractor's failure to undertake such work and/or services in accordance with
the End-User's requirements or any allegation that such work and/or services are defective); and/or
(ii) attributable to the cost of repairing any damage or loss to the End-User’s or the Agency’s property
caused by the Contractor and/or the Personnel.
--------------------
seems like another jargon loophole to give an agent more powers.

I would seriously get the entire contract reviewed from a legal perspective not just an IR35 one.

This means they can say there is a problem we are taking money when there is no proof of one.

[diesel]

Off topic, but has anyone see a clause like this one in theri T&Cs before. This is a new one for me:

--------------
RIGHT OF SET-OFF
13.1 The Agency shall be entitled at any time during, or in any event upon termination of this
Assignment Contract, to deduct from the Fees or any other monies owed by the Agency to the
Contractor any overpayments made at any time, or expenses that the End-User disputes,
unrecoverable expenses, Losses, indemnity obligations and/or monies otherwise owed to the
Agency by the Contractor including any costs, fees or expenses: (i) which are paid to or incurred by
the End-User in connection with any services and/or work performed by the Contractor for the End-
User (including the Contractor's failure to undertake such work and/or services in accordance with
the End-User's requirements or any allegation that such work and/or services are defective); and/or
(ii) attributable to the cost of repairing any damage or loss to the End-User’s or the Agency’s property
caused by the Contractor and/or the Personnel.
--------------------
seems like another jargon loophole to give an agent more powers.

[diesel]

Spoke to a good contact at another agency he said it makes no difference to the agency if one is opted In or OUT. He suggested that Opting OUT is preferable for IR35 but not essential and he has contractors who are Opted In and Out.

Advice from QDOS is also to Opt Out, again to ensure one is not caught as being “under control” for IR35.

[SueEllen]

I once had an agent tell me that my rate would have to reduced by £50/day to cover the "extra admin" that not opting out would incur....

What them hassling your two references?

Considering most of them insist on checking, properly or otherwise, that you are legally allowed to work in the UK that's the only other thing that's really required of them.

I know when I was permie and talking to other people who are permanent the loads of employers don't bother checking qualifications etc unless they are planning on reducing the workforce.

[Mr.Whippy]

I once had an agent tell me that my rate would have to reduced by £50/day to cover the "extra admin" that not opting out would incur....

[Wanderer]

I have already had an interview with the end client. How does that make me Opt in?

The law is badly worded, it says you must opt out "before the introduction or supply". Now does that mean you must agree to opt out before you are introduced (final chance?) or does it mean you have a second chance to opt out out before you are "supplied" to the client?

One view on this forum is that you must be properly opted out before the introduction (eg job interview as a contractor would normally do) and that the "supply" of a worker under the regulations refers to a situation where there was no such "introduction" of the worker to the client but rather the worker simply turned up to work for the client (secretary, security guard, call centre operator, kitchen porter etc).

It's never been tested in court and that's the only way we will ever know for sure what the law means.

does that mean if i Opt in mt Ltd Co could eb implied as "under the control of the client"??

If you are asking that from an IR35 point of view, then no, all other things being equal the opt-out won't affect your status under IR35. The suggestion that it might is more agency bulltulip.

[SueEllen]

i sent my contract to Qdos for review, but they only review for IR35, not sure if this comes under the category.

Give them a ring and see what they can do for you - remember if you don't ask you definitely won't get.

[diesel]

The agency is talking tulip.

Get the contract reviewed and the clauses struck out. Do a search and you will find links to solicitors and companies who review contracts.

Edited to say: I've met more than one agent who goes pale and becomes a push over when you actually do send the contract for review.

i sent my contract to Qdos for review, but they only review for IR35, not sure if this comes under the category.

[SueEllen]

I have already had an interview with the end client. How does that make me Opt in?

On previous contracts i never really bothered too much on this matter, but as this new agency has send me 10 pages of T&Cs with lost of jargon to ensure they make me sign as Opted Out.

If i Opt In, what are the Pro/Cons compared to Opting Out?
some more agency jargon on the Opt Out Agreement states
-----------
Regulation 32 covers the “Application of the Regulations to work-seekers which are incorporated” and Regulation 32 (9) provides for limited companies and those workers whose services they supply, to opt out of the Regulations. AGENT XXX considers it is inconsistent for the arrangements between an agency and a limited company for the supply of individual workers to be subject to the terms of the Regulations as the Regulations imply they are applicable to workers who act ‘for and under the control’ of the End-User.
------------------------
does that mean if i Opt in mt Ltd Co could eb implied as "under the control of the client"??

The agency is talking tulip.

Get the contract reviewed and the clauses struck out. Do a search and you will find links to solicitors and companies who review contracts.

Edited to say: I've met more than one agent who goes pale and becomes a push over when you actually do send the contract for review.

[diesel]

here is a link to regulation 32...
Conduct of Employment Agencies and Employment Businesses Regulations (Northern Ireland) 2005


some guidance docs
http://www.bis.gov.uk/files/file24248.pdf

[diesel]

I have already had an interview with the end client. How does that make me Opt in?

On previous contracts i never really bothered too much on this matter, but as this new agency has send me 10 pages of T&Cs with lost of jargon to ensure they make me sign as Opted Out.

If i Opt In, what are the Pro/Cons compared to Opting Out?
some more agency jargon on the Opt Out Agreement states
-----------
Regulation 32 covers the “Application of the Regulations to work-seekers which are incorporated” and Regulation 32 (9) provides for limited companies and those workers whose services they supply, to opt out of the Regulations. AGENT XXX considers it is inconsistent for the arrangements between an agency and a limited company for the supply of individual workers to be subject to the terms of the Regulations as the Regulations imply they are applicable to workers who act ‘for and under the control’ of the End-User.
------------------------
does that mean if i Opt in mt Ltd Co could eb implied as "under the control of the client"??