Reply to: IT Contracts Lawyer

[fieryjack]

you seem quite knowledgeable TheFaQQer...are you a lawyer or contractor?

[Wanderer]

In the end I decided to opt out...this time.......

Each to their own, but that's a bad decision in my opinion. The opt out benefits no one except the agency.

Don't let the agency bully you into thinking that you can't withdraw the opt out. Just send them an email and follow it up with a recorded delivery letter saying you are withdrawing the opt out. There is nothing for you to lose by doing this. See the sticky for a long discussion.

You should also remember that the agency regulations benefit the client as well as the worker so there is no reason why client would want you to opt out either, unless the client have been bulltulipted by the agency too.

[TheFaQQer]

Plus I opted out in the previous contract so would be difficult to now opt in, even though the previous opt out may have been invalid as I opted out after meeting the client (interview first, contract offered second).

It's not difficult at all. And if you have already been introduced to the client, then you can't opt out anyway.

IR35 is not really an issue as it's a different piece of legislation, though opting out would help prove I was "not under the control of the client".

No it wouldn't.

[fieryjack]

thanks to Kate from Bauer & Cottrell for her assistance...she points out she's not a lawyer but specialises in IR35 Contracts.

In the end I decided to opt out...this time.......

[SueEllen]

No, but they could easily offer a ridiculous contract if you opt in, and a sensible one if you opt out. Which wouldn't be illegal.

That's why you don't tell them you are opting in until the last possible moment after you have met the client and they like you.

It also helps if you have a lawyer on your side.

[fieryjack]

Got some advice from a specialist lawyer and it is possible for the client to insist the contractor opts out, and so the agency would have to comply. Need to speak to the client to confirm this, but I don't think they've stipulated that.

Plus I opted out in the previous contract so would be difficult to now opt in, even though the previous opt out may have been invalid as I opted out after meeting the client (interview first, contract offered second).

IR35 is not really an issue as it's a different piece of legislation, though opting out would help prove I was "not under the control of the client".

Holiday pay / sick pay / permanent employee is not relevant as stated by the agency.

The Conduct Regulations were originally introduced to stop dodgy agencies taking advantage of temps. A lot of agencies / clients / accountants are confused by the Regulations so it's always better to get specialist advice for each contract. It would have been much better if I'd had my contract reviewed by a lawyer in the beginning. A 12 month restriction clause may not have been reasonable in the first place.

So in the end I don't think I'll gain much by opting in now, and it's too late to have a contract review, but I'll remember that for next time. I didn't realise though it would be so complicated, it's not black and white! Lawyer said most contractors opt out.

thanks again for all your input, it helped me ask the right questions

[TheFaQQer]

One other thing - even if the contractor has a clause which enables them to go direct (or they were not opted out correctly from the agency regulations), then the agreement between client and agency is the important one to consider here.

It's one thing to tell the contractor that they can go direct (and put it in a contract), but if the agreement between client and agency differs, then which one is binding? (Answer: the one that is prepared to fight for it)

[TheFaQQer]

Tell them you'r reporting them to the compliance unit at BIS. They are not allowed to coerce you or make any offer conditiononal on whether or not you opt out, aand there's a £5k fine if they try to. Their address is [email protected]

HTH

No, but they could easily offer a ridiculous contract if you opt in, and a sensible one if you opt out. Which wouldn't be illegal.

[fieryjack]

thanks for all the info, very useful.

I asked the agency to confirm non placement by e-mail and they haven't done it yet...

can't believe they'd be so blatantly dishonest..they tried every excuse in the book...IR35, Permanent employee only...holiday pay, sick pay, pension fund, no one opts in except me, client wouldn't approve of it, I'm making a big fuss unnecessarily.....

I can't ask the client as they're not back until after the New Year, but I don't see why it would be a problem. I wouldn't want sick pay/ holiday pay anyway. The only expense for the agency is to make sure that I'm a suitable candidate for the placement, but since I worked for the client previously that's already sorted. I hope I don't have to go down the legal route as that's extra expense.....

[SueEllen]

Tell them you'r reporting them to the compliance unit at BIS. They are not allowed to coerce you or make any offer conditiononal on whether or not you opt out, aand there's a £5k fine if they try to. Their address is [email protected]

HTH

It's actually better to ring them up as lots of the info on the BIS website is out of date including the email address.

You need to ring the Pay and Work rights helpline, who will then forward your complaint to them on 0800 917 2368.

(I actually rang the BIS to get their details and they directed me to the Pay and Work Rights helpline who then contacted the EAI who are part of the BIS. )

BTW I think it's the raiding of the company offices which the EAI, like a few other regulators are allowed to do, is what most agencies don't want. The fine for a large agency isn't really big enough to upset them.

[malvolio]

agency just spent 15 mins on the phone trying to convince me to opt out. Says they will refuse to place me at the client's site if I opt in. Time to get legal advice I think....

Tell them you'r reporting them to the compliance unit at BIS. They are not allowed to coerce you or make any offer conditiononal on whether or not you opt out, aand there's a £5k fine if they try to. Their address is [email protected]

HTH

[fieryjack]

agency just spent 15 mins on the phone trying to convince me to opt out. Says they will refuse to place me at the client's site if I opt in. Time to get legal advice I think....

[fieryjack]

thanks, SueEllen and everyone else for their comments.

I think I'm going to Opt-In, there's no commercial reason for me to Opt-Out. Naturally I shall be having words with my accountant for giving me incorrect advice, especially as he specialises in Contractors and I've been with him for over 15 years.

I've now read the documentation in more detail.

According to Opt in, opt out? What the employment agency regulations are all about :: Contractor UK

"If the opt out is provided after “introduction or supply” [of the work-seeker] it is not valid. It will only apply in respect of subsequent (new) contracts. In my experience, few agencies arrange for an opt-out to be signed before an introduction to the client - so many opt outs are worthless and the Regulations apply. Often however this is a problem for the agency and of benefit to the contractor."

So the opt out of my previous contract is not valid, which means I can go directly to the client now. However, if the client has signed a document with the agency regarding a 12 month clause, then it looks like I'll have to stick with the new arrangement starting from Jan 2012. The client is so angry with the agency, I'm sure they'd prefer for me to work directly anyway.

It's great that I am much clearer where I stand now.

thanks again

[SueEllen]

hi I worked for the client earlier this year ending in Aug 2011. The client now want me back for 3 months starting from Jan 2012. However the agency have stated in the new contract they are willing to let me go in June 2012 and work directly for the client from then if I wish.

Under the advice of the same accounting firm, I opted out of the contract in Jan 2011. Looking at the details given in

Find yourself a new accountant asap.

Accountants shouldn't be advising on that area of business.

They may however give you the pros and cons of opting-in/out but should leave it to you to make the decision.

The Conduct of Employment Agencies and Employment Businesses Regulations 2003

it seems that if i had opted in, I would have been able to work directly for the client in Jan 2012 without all this hassle (there was a 12 month handcuff clause which wouldn't have applied if I had opted in)

I have opted out again, but because I haven't started the contract yet, I could theoretically cancel the opt out and stay opted in. However I'm not sure whether there would be any advantage to doing that now, as my contract finishes in Mar 2012, though there is always the possibility of extension. Any thoughts on this?

If you haven't started opt back in then.

Make sure they receive the opt-in from you and your limited company before you start and can prove they have. Emails and letters are always not received when it's too someone's advantage.

I wish I had taken proper legal advice back in Jan 2011, I didn't realise how much better it would have been.

The lawyers I've used don't tell me to opt-in or out. They leave the decision to me after I decide from the information.

I suggest you read the guides and do research on what clauses a good contract should have. There is lots of information on these boards and on the web.

When you get your next contract research any dubious clauses before deciding whether you need a lawyer as some of the legal wording you aren't sure off the meaning and implications.

[fieryjack]

hi I worked for the client earlier this year ending in Aug 2011. The client now want me back for 3 months starting from Jan 2012. However the agency have stated in the new contract they are willing to let me go in June 2012 and work directly for the client from then if I wish.

Under the advice of the same accounting firm, I opted out of the contract in Jan 2011. Looking at the details given in

The Conduct of Employment Agencies and Employment Businesses Regulations 2003

it seems that if i had opted in, I would have been able to work directly for the client in Jan 2012 without all this hassle (there was a 12 month handcuff clause which wouldn't have applied if I had opted in)

I have opted out again, but because I haven't started the contract yet, I could theoretically cancel the opt out and stay opted in. However I'm not sure whether there would be any advantage to doing that now, as my contract finishes in Mar 2012, though there is always the possibility of extension. Any thoughts on this?

I wish I had taken proper legal advice back in Jan 2011, I didn't realise how much better it would have been.

thanks for all your comments