Reply to: First job, first contract, a bit confused...

[tractor]

...

Just a quick update, phoned the agency to tell them I have been advised by an employment solicitor not to sign an agreement that a) has me down as a limited company rather than under an umbrella company and b) is opted out. Funnily enough, the agency were quick to move on this and I got passed through to the legal team. The guy there said that opting out has already been agreed with the client, all the contractors they send there are opt out, and they will need to phone them as the client may not be happy about it. I've told them to go ahead, but am wondering if I am doing the right thing? I don't see how me opting in has any substantial effect on the client? Are they trying to call my bluff or am I barking up the wrong tree?

Most of the arguments have already been done to death and as usual, there are two camps of opposite opinion. Neither is right (yet) because the matter has not actually been tested at court.

However, the bit I have emboldened is important as I don't believe that your opted status has any impact whatsoever on the client, indeed it is completely neutral as far as the client is concernced. Introducing this into the equation is another naughty lie from the agent.

I know the OP is keen on the role and I don't blame them, it's just a shame that their introduction into the commercial world has to be tainted by half educated greedy numbskulls. I would write to the client, tell them how keen I am to take the role and inform them that the agency are placing such onerous conditions upon them that makes it untenable. Move on and look for something more achieveable. Chances are the client will smack the agent into line.

My two 'penneth is that every time (and it is a few) that I have flatly refused to opt out, the agent has backed down - every time.

[mudskipper]

I didn't expect it to lead to a heated discussion!

Noob error

Good luck with the gig.

[SueEllen]

Yeah, that's it as far as I can see. I did have a thought that as I have opted out, that any clauses they can enforce due to my opting out would supercede the lack of handcuff section in my contract? To be honest, I am knackered after two days of this, I'll deal with any fallout on Monday.

I had 4 weeks of it on one contract.

That's why I always tell people they must talk to the client before the agency.

If you don't know what to say to the client so you don't sound like an idiot then this board is a good resource.

[Wanderer]

Hang on, they removed the handcuff section altogether? Lock stock and barrel? Could be a win that one then but very surprising. Don't worry about it.

Could be a win, unless the agency have the same clause in their agreement with the client and they will seek to enforce it against the client instead of the contractor.

So another agency rides rough shod over the law. This opt out was a massive own goal by the PCG and they seem to be in la la land with regards to the abuse of it.

[Taurig]

Hang on, they removed the handcuff section altogether? Lock stock and barrel? Could be a win that one then but very surprising. Don't worry about it.

Yeah, that's it as far as I can see. I did have a thought that as I have opted out, that any clauses they can enforce due to my opting out would supercede the lack of handcuff section in my contract? To be honest, I am knackered after two days of this, I'll deal with any fallout on Monday.

[northernladuk]

Hang on, they removed the handcuff section altogether? Lock stock and barrel? Could be a win that one then but very surprising. Don't worry about it.

[northernladuk]

They haven't changed it to anything, they've just taken that entire section out. I hope you're not about to tell me that is a huge mistake. Not signed it yet, but probably soon.

Not a mistake, just one of those things. There is a lot of discussion about handcuff clauses on here which you can have a look at here...

handcuff site:forums.contractoruk.com/accounting-legal/ - Google Search

My take on it nowadays is to stuff the opt in/out rubbish and deal with it when the time comes. Incognito makes a point that I would fall back on in this post...

http://forums.contractoruk.com/busin...lations-2.html

It was also mentioned, but I can't find the post, that this restriction can only be applied to protect the agent from loss. If you find a gig that the agent has no way of getting and is not losing any business over he can't enforce it. Again if the contract comes to an end and the client decides to change agent, the old agent hasn't got a leg to stand on because the client binned them and again they would never have have been able to fill the gig so can't fall back on the handcuff. They can cause a fuss, don't get me wrong, but legally they don't have a leg to stand on.

Thing to remember in all this is that so far, I have never seen anything go legal on here. Contracts, opt in/out, handcuffs, agent refusing to pay or anything. Get enough big guns on your side and fight and they will roll over. Biggest cojones wins regardless of the legal stand point. The best way out is to negotiate and then make threats to take legal. That seems to resolve 99% of situations. Doesn't really matter what the opt in or out or contract says. It is just ink on a piece of paper until legal people get involved... which costs a lot of time and money.

[Taurig]

It's a contract NOT a job.....

Don't make them change the handcuff. It is unenforceable as it is. Why make them change it to something that is enforceable???

They haven't changed it to anything, they've just taken that entire section out. I hope you're not about to tell me that is a huge mistake. Not signed it yet, but probably soon.

[northernladuk]

OK, having had dozens of conversations today I have arranged this:

- I am going with an umbrella company and the whole Ltd company thing has been scrapped. This should sort out some of the issues I had with having to have insurance for 3 years after the contract, which I think was down to it being a Ltd company contract.

- I am going to opt out, but I have asked them to modify the contract so that they don't have a hold on me for 12 months after the contract terminates (I think the clause had 'solicitation' in there somewhere).

I really don't want to have to bail on this job, and much as I would have like to have stayed opted in, I think this is a reasonable compromise. Thoughts?

It's a contract NOT a job.....

Don't make them change the handcuff. It is unenforceable as it is. Why make them change it to something that is enforceable???

[northernladuk]

Did they put their opt out demands in writing?
Do you fancy picking a fight with them by reporting them to the PCG (see this link for information about reporting it) and the REC then let the two fight it out and see what happens?

I don't blame you if you would rather have a quiet life than stir up tulip with them though...

Nope, they just a contract for 'opted out' contractors so had a load of discussions with their legal team as the agent didn't have a clue. They referred back to the PCG, REC and QDOS which all suggest opt out. Client was happy with Opted Out contractors (asked him in interview) so I gave up.

To be fair my head is mashed with all this. Even that PCG page suggests to Opt out as did QDOS so I really don't see the problem now and if I get another contract I will speak to them about in/out but I aint gonna fight to the hilt for it. A) It's pointless as the agents just fall back on their bodies advice and one contractor won't change that and B) It just isn't worth falling out with an agent or losing a gig over IMO.

No one really knows, no one gives a tulip and the situation very rarely happens and if it does it never goes legal anyway so it doesn't help. Fighting with an agent is not the way to get this fixed IMO.

Would much rather trick the agents in to a 12 month handcuff that isn't enforceable and then fight them when time comes. Remember that a handcuff has to demonstrate loss of business to the agent so it isn't even valid in a majority of cases.

[formant]

- I am going to opt out, but I have asked them to modify the contract so that they don't have a hold on me for 12 months after the contract terminates (I think the clause had 'solicitation' in there somewhere).

I really don't want to have to bail on this job, and much as I would have like to have stayed opted in, I think this is a reasonable compromise. Thoughts?

Rest assured that your opt-out isn't actually valid if it's done after you've been introduced to the client. (Read bottom of this: Opt in, opt out? What the employment agency regulations are all about :: Contractor UK)

So should there be any issues - chances are you're de facto opted-in despite signing the opt-out.

[Taurig]

OK, having had dozens of conversations today I have arranged this:

- I am going with an umbrella company and the whole Ltd company thing has been scrapped. This should sort out some of the issues I had with having to have insurance for 3 years after the contract, which I think was down to it being a Ltd company contract.

- I am going to opt out, but I have asked them to modify the contract so that they don't have a hold on me for 12 months after the contract terminates (I think the clause had 'solicitation' in there somewhere).

I really don't want to have to bail on this job, and much as I would have like to have stayed opted in, I think this is a reasonable compromise. Thoughts?

[psychocandy]

But like NLUK its all well and good being right but having an extended legal argument doesnt get you the gig at the end of the day.

[Wanderer]

The agent I had this fight with was a member of REC

Did they put their opt out demands in writing?
Do you fancy picking a fight with them by reporting them to the PCG (see this link for information about reporting it) and the REC then let the two fight it out and see what happens?

I don't blame you if you would rather have a quiet life than stir up tulip with them though...

[northernladuk]

I will bet you they won't accept a Confirmation of Arrangements letter either....

The agent I had this fight with was a member of REC