Opting out of the AWR

[keninparis]

Any attempt to 'opt-out' would be viewed as avoidance.

[LottoPlayer]

TM the avoidance issue refers to agencies as they are liable for a fine of up to £5000 (per contractor) for attempting to 'get round' the legislation. The detriment for the individual is that they are being given the impression that they would not be able to make a claim for unfair treatment, in respect of pay and working conditions, even if they had a genuine case. In fact this isn't the case as their status will be dependent on whether or not a tribunal considers that they are in business in their own account or not (the guidance we've had so far indicates that they will use the same tests that are used for IR35) so they could make a successful claim even though they had signed something which said that they were outside the scope.

Also worth noting that the avoidance issue refers to the entire supply chain, not just the agency. This includes the hirer, and any other party deemed a Temporary Work Agency (TWA) under the regulations. This includes Umbrella's. The Agency Worker can include any TWA or other intermediary in a tribunal.

[LisaContractorUmbrella]

Exactly, so in what way is signing a useless declaration, detrimental to the contractor ?

Don't get me wrong, I'm not trying to get myself covered by the AWR. I spent 2 1/2 years already fighting the opposite Just trying to understand where your 'detrimental' assertion is coming from.

To a contractor as well informed as your goodself it won't be detrimental - my point is that new contractors or ones who don't read this forum may actually have a genuine grievance which they won't raise because they have been persuaded that the legislation doesn't cover them.

[Shika]

Exactly, so in what way is signing a useless declaration, detrimental to the contractor ?

Don't get me wrong, I'm not trying to get myself covered by the AWR. I spent 2 1/2 years already fighting the opposite Just trying to understand where your 'detrimental' assertion is coming from.

I believe the OP is saying that by being asked to sign an 'opt-out' (which is totally worthless as everyone else has said), the individual bloke will assume that they can't bring claims against the AWR, because they have signed this bit of paper which erroneously says they can't.

That is what I'm assuming the detrimental effect is, rather than the physical, bone crushing effect you seem to be looking for.

[TestMangler]

TM the avoidance issue refers to agencies as they are liable for a fine of up to £5000 (per contractor) for attempting to 'get round' the legislation. The detriment for the individual is that they are being given the impression that they would not be able to make a claim for unfair treatment, in respect of pay and working conditions, even if they had a genuine case. In fact this isn't the case as their status will be dependent on whether or not a tribunal considers that they are in business in their own account or not (the guidance we've had so far indicates that they will use the same tests that are used for IR35) so they could make a successful claim even though they had signed something which said that they were outside the scope.

Exactly, so in what way is signing a useless declaration, detrimental to the contractor ?

Don't get me wrong, I'm not trying to get myself covered by the AWR. I spent 2 1/2 years already fighting the opposite Just trying to understand where your 'detrimental' assertion is coming from.

[LisaContractorUmbrella]

Again, I 100% agree with the sentiment, although, I assume thinking on this will be as about as joined up as IR35 vs employee rights, which are totally different things but use the same tests in court to determine status.

However, I asked the OP if she was implying that 'opting out' (which i know can't be done) or declaring yourself outside AWR as you are in business on your own account, can be detrimental as she claimed it would be 'avoidance'.

None of what you've posted above explains the OPs initial assertion. That is what i'm seeking clarification of.

TM the avoidance issue refers to agencies as they are liable for a fine of up to £5000 (per contractor) for attempting to 'get round' the legislation. The detriment for the individual is that they are being given the impression that they would not be able to make a claim for unfair treatment, in respect of pay and working conditions, even if they had a genuine case. In fact this isn't the case as their status will be dependent on whether or not a tribunal considers that they are in business in their own account or not (the guidance we've had so far indicates that they will use the same tests that are used for IR35) so they could make a successful claim even though they had signed something which said that they were outside the scope.

[NotAllThere]

...much less the poor dears Human Remains whjo would see a chunk of the empire disappear towards Procurement...

OT, but I don't recall ever dealing with HR* in any of my contracts - it's always been purchasing.

Any, I watch with great disinterest to see how this develops.

* Except one of my current ones where HR really are the client. Even then, it went through procurement.

[malvolio]

Again, I 100% agree with the sentiment, although, I assume thinking on this will be as about as joined up as IR35 vs employee rights, which are totally different things but use the same tests in court to determine status.

However, I asked the OP if she was implying that 'opting out' (which i know can't be done) or declaring yourself outside AWR as you are in business on your own account, can be detrimental as she claimed it would be 'avoidance'.

None of what you've posted above explains the OPs initial assertion. That is what i'm seeking clarification of.

Right. I'm not totally clear what avoidance means in that context; I assume avoiding being seen as being in scope of the AWR and therefore presenting a raised risk that you will claim assorted "things" from the end client. Or having to be dropped after 11 weeks in case you do try to caim something.

The problem is that the whole thing is being done backwards; as that blog says, the best answer is to emphasise the business relationship and eradicate any hint of the worker being a temporary employee of any kind. That, however, is far too deep a concept for the average agency to cope with, much less the poor dears Human Remains whjo would see a chunk of the empire disappear towards Procurement. Hence the need to be seen to be outside the AWR, rather than making sure people actually are outside the AWR.

As always, we are having to jump through non-existent hoops becuase the key players don't actually understand their own business.

[TestMangler]

Good idea. Read this - Hey, look at what we just did. We killed off IR35! | Contractor Accountants

HTH

Again, I 100% agree with the sentiment, although, I assume thinking on this will be as about as joined up as IR35 vs employee rights, which are totally different things but use the same tests in court to determine status.

However, I asked the OP if she was implying that 'opting out' (which i know can't be done) or declaring yourself outside AWR as you are in business on your own account, can be detrimental as she claimed it would be 'avoidance'.

None of what you've posted above explains the OPs initial assertion. That is what i'm seeking clarification of.

[malvolio]

The trick here, is to read what was written before commenting

Good idea. Read this - Hey, look at what we just did. We killed off IR35! | Contractor Accountants

HTH

[TestMangler]

Decalre what you like, if you can't demonstrate you are genuinely in business*, you're in scope. You would do as well t sign a declaration that you are exempt from the law of gravity. If agencies wnat you to sign such things then do so, it means absolutely bugger all in the real world. Unless, of course, they give YourCo a clear B2B contract with none of hte pseudo-employee rubish in it...



* OK, so having a linmited comany and a series of engagements outside IR35 kind of covers that. Perhaps. Who knows...

I'm aware of all that Mal, I've done the 'genuinely in business thing' for 2 1/2 years with HMRC and come out the other side.

What i'm asking is, is the OP saying that signing some sort of declaration (which i agree is a waste of time) has some sort of detrimental effect. That is what is being implied in the original post.

In the my original post on this subject some weeks ago, I commented that this may lead, for the first time, to agencies coming out with better B2B contracts. The usual suspects shouted me down with the usual 'you need to demonstrate, working practices, staff toilets' bollocks that you normally do.

The trick here, is to read what was written before commenting

[malvolio]

I've had agency chasing me to do this (and started a thread at the time). It was more a declaration that you considered you were outside of their scope rather than an attempt to 'opt out'.

Are you saying that supplying an agency with a declaration that you consider yourself to be outside the scope of AWR could be detrimental ?

Decalre what you like, if you can't demonstrate you are genuinely in business*, you're in scope. You would do as well t sign a declaration that you are exempt from the law of gravity. If agencies wnat you to sign such things then do so, it means absolutely bugger all in the real world. Unless, of course, they give YourCo a clear B2B contract with none of hte pseudo-employee rubish in it...



* OK, so having a linmited comany and a series of engagements outside IR35 kind of covers that. Perhaps. Who knows...

[TestMangler]

We are finding that a lot of people think you can 'opt-out' of the Agency Worker Regulations in the same way as opting out of the Employment Business and Employment Agency Regulations 2003 - just to clarify they are two totally different things. You cannot decide whether or not you will fall within the scope of the Agency Worker Regulations 2010 - it will depend on your working practises. Any attempt to 'opt-out' would be viewed as avoidance.

I've had agency chasing me to do this (and started a thread at the time). It was more a declaration that you considered you were outside of their scope rather than an attempt to 'opt out'.

Are you saying that supplying an agency with a declaration that you consider yourself to be outside the scope of AWR could be detrimental ?

[Support Monkey]

just goes to prove its another peice of goverment legislation no one understands

[LisaContractorUmbrella]

We are finding that a lot of people think you can 'opt-out' of the Agency Worker Regulations in the same way as opting out of the Employment Business and Employment Agency Regulations 2003 - just to clarify they are two totally different things. You cannot decide whether or not you will fall within the scope of the Agency Worker Regulations 2010 - it will depend on your working practises. Any attempt to 'opt-out' would be viewed as avoidance.