Reply to: Agencies CAN refuse to use opt-in contractors

[mudskipper]

The regulations are intended for temporary employees. For a typical IT contractor operating outside IR35, he won't be under the control of the client and therefore the regs don't apply anyway. If you read the gov regs it clearly states this with a very clear example of an IT contractor, which I would say is good description of an IT contractor outside of IR35.

That's the AWR which does not apply to contractors. This thread is discussing agencies requiring opt out of the conduct regs.

[BlasterBates]

The regulations are intended for temporary employees. For a typical IT contractor operating outside IR35, he won't be under the control of the client and therefore the regs don't apply anyway. If you read the gov regs it clearly states this with a very clear example of an IT contractor, which I would say is good description of an IT contractor outside of IR35.

An individual has set up his own limited company through which he provides
IT services. He has a contract with a TWA and is supplied to work on a specific
project with an anticipated duration of 12 months. The individual has no fixed
working pattern and can determine how and when he performs the services; he
can also send a substitute to perform the services at any time or payment is
made on specific deliverable or on a fixed price and not simply on an hour, daily
or weekly rate. However, he is subject to the hirer’s reasonable and lawful
instructions. Given the absence of personal service and mutuality of obligation,
the company is a client or customer of the individual, therefore the individual is
out of scope. This must be a true reflection of the reality of the relationships 13
between the parties involved and not simply a reflection of the contractual terms

[TheFaQQer]

Odd. I thought that was answered... Ho hum...

There were two responses from CC / BoD members, however the question remains unanswered.

Feel free to quote / post a link / PM me a link where the question was answered, though

[malvolio]

For anyone interested in this, the question was put to the IPSE management about this specific case, but answer came there none.

Odd. I thought that was answered... Ho hum...

[TheFaQQer]

New thread created. I look forward to reading the answers

For anyone interested in this, the question was put to the IPSE management about this specific case, but answer came there none.

[SueEllen]

Given the rise of another recent thread on the matter here, how did this situation pan out? Did contractor get their money? How far did the agent push? How far did IPSE (then PCG) push?

To be fair when I had an issue with the opt-out malvolio was helpful but the PCG wasn't. I actually sorted out the issue myself with the EAI as I get a solicitor to review my contracts. In my case the agency eventually backed down but then proceeded to screw other contractors.

[TheFaQQer]

No idea. Why don't you ask them?

New thread created. I look forward to reading the answers

[tractor]

...

No idea. Why don't you ask them?

Because you raised it here and despite trying, I can find no reference over there. Additionally, you said "I'll push to take it to court" so I thought you may have the answer off the top of your head.

Why don't you answer? Oh I forgot, you don't do answers, do you?

Flounce if you want, it does you no favours though.

[malvolio]

Given the rise of another recent thread on the matter here, how did this situation pan out? Did contractor get there money? How far did the agent push? How far did IPSE (then PCG) push?

No idea. Why don't you ask them?

[tractor]

...

ACtually I'm pushing something that may clarify. One of our number has been refused payment by the agency on the grounds that they haven't been paid, but as far as I can reasonably tell he is opted in by default. He needs to follow this through with EASI first but if that goes nowhere, or the opting status remains unclear, or he is opted in so making the agency wrong, I'll push to take it to court.

Lots of things can conspire to stop this happening of course, but if we don't try...

Given the rise of another recent thread on the matter here, how did this situation pan out? Did contractor get their money? How far did the agent push? How far did IPSE (then PCG) push?

[psychocandy]

The whole opt out rules and regulations are complete bollacks.

Agencies don't like it so they try to blag it anyway. Even if this doesn't work they know they can be awkward if they really want to and never get pulled up for it.

For instance, agency says no we're not sending you're CV off unless you sign opt out first. You say no, so they don't send CV off and you don't get the gig.

You complain to EAS (who don't seem to understand the regulations anyway!). Agency denies all knowledge and says CV was not sent because you were not suitable not because of opt out. End of process, net result = no contract, agency continue to do this all the time.

Until someone like PCG gets their thumb out of their arse and tackles this, I fear this is what is going to happen in future. You're just going to have to hope you've got any agency that dont play this silly game.....

[psychocandy]

ACtually I'm pushing something that may clarify. One of our number has been refused payment by the agency on the grounds that they haven't been paid, but as far as I can reasonably tell he is opted in by default. He needs to follow this through with EASI first but if that goes nowhere, or the opting status remains unclear, or he is opted in so making the agency wrong, I'll push to take it to court.

Lots of things can conspire to stop this happening of course, but if we don't try...

Be interested to hear results of this.

[malvolio]

They probably won't do that.

They will likely pay up the day before the court hearing as they have finally paid to talk to a solicitor.

Lots of businesses including agencies won't use a solicitor unless they have to thinking it saves them money.

I suggest our side wouldn't accept a settlement; there's no need to do so and the idea is to get a ruling. Plus, perhaps more importantly, get the guy's money.

But let's not get ahead of outrselves, it may not go anywhere.

[SueEllen]

That could definitely be an interesting case if it ever gets to court. What's the bet that they will offer an out of court settlement with a gagging clause and no admission of liability so the whole thing quietly disappears though....

They probably won't do that.

They will likely pay up the day before the court hearing as they have finally paid to talk to a solicitor.

Lots of businesses including agencies won't use a solicitor unless they have to thinking it saves them money.

[Wanderer]

I'll push to take it to court. Lots of things can conspire to stop this happening of course, but if we don't try...

That could definitely be an interesting case if it ever gets to court. What's the bet that they will offer an out of court settlement with a gagging clause and no admission of liability so the whole thing quietly disappears though....