Reply to: A new Gig and am suspecting Agency dodgy dealings with sign-up

[LisaContractorUmbrella]

Thanks. Being out of the IR35 net is imperative, however I did also want to ensure I could seek the protections of AWR if required (i.e. wanting to go permie at Clientco and ensuring I get a fair shout). I assume leaving that statement in the contract is not going to reduce AWR rights (its all based on working practices in anycase).




Was getting a lot of presure from the scheming agent to Opt-Out of Conducts of Employment agencies. The agent sent over an email indicated that...

"....I strongly advise you to send me the contract documents today as requested and confirmation of your Opt Out status. Of the 1000+ contractors I have on site, 99.9% are OPT OUT contractors working to the exact same contract terms and therefore no changes will be made as this is mandated by the client."

Sent back a firm email indicating that Opt-Out can't be mandated by the Agent. Didn't believe a Clientco would mandate it either. The Agent relented.

But they could still screw it up in some other way until a contract is signed. Schem'ing fooks, can't trust 'em.

They only wanted to submit contractors for interview that would Opt-out in the first place. Clearly they want candidates Opted-Out so they can put restrictive covenants on the contractor as well as ensure they don't have to pay a contractor if they don't get a signed timesheet in a certain time period, etc..

As NLUK says - you can't have it both ways - either you want the freedom of working in business on your own account or you want the security of disguised employment. Also being outside IR35 may be 'imperative' but you cannot necessarily make it so and working outside when you're not will come and bite you at a later date

[northernladuk]

Thanks. Being out of the IR35 net is imperative, however I did also want to ensure I could seek the protections of AWR if required (i.e. wanting to go permie at Clientco and ensuring I get a fair shout). I assume leaving that statement in the contract is not going to reduce AWR rights (its all based on working practices in anycase).

You can't have your cake and eat it. Read these...

Limited company contractors claiming AWR rights have little chance of avoiding IR35


IR35 employment status tests for contractors are not relevant to AWR, and vice versa

If the professionals say it is unclear then it is going to be a nightmare if it ever hits. Working with IR35 looming is bad enough without putting yourself at risk just to claim some rights that a business shouldn't have and you will claim in a rare instance. Don't start contracting with a view you might go perm at the client. Do it properly or don't. HMRC will suss your intentions and use it against you in an investigation. Jury is out if they would win but you have 'lost' already by being in an investigation IMO.....

[pauly]

Such a statement in a contract would not add weight to IR35 status and is actually meaningless - declaring yourself outside the scope of legislation will not put you outside.

Thanks. Being out of the IR35 net is imperative, however I did also want to ensure I could seek the protections of AWR if required (i.e. wanting to go permie at Clientco and ensuring I get a fair shout). I assume leaving that statement in the contract is not going to reduce AWR rights (its all based on working practices in anycase).

Section 32(13) of the regulations states that agencies cannot refuse to work with you because you won't opt out. The PCG say this.

PCG would like to emphasise that it is a contravention of the Act for any agency to require you to opt out of the Agency Regulations. It may also be illegal for them to pressure you to do so by threatening not to put forward your CV. Should any members find themselves being required to opt out of the Agency Regulations, they should inform PCG via the link on this page.

That's a grey area, I would insist that the agency offers equal terms for both opted in and opted out and report them to the REC/PCG/BIS if they refuse. It's quite clear that the opt out is widely abused by agencies. There is NO reason why a client would want workers to opt out of the Agency Conduct Regulations because the regulations protect both the worker and the client.

Was getting a lot of presure from the scheming agent to Opt-Out of Conducts of Employment agencies. The agent sent over an email indicated that...

"....I strongly advise you to send me the contract documents today as requested and confirmation of your Opt Out status. Of the 1000+ contractors I have on site, 99.9% are OPT OUT contractors working to the exact same contract terms and therefore no changes will be made as this is mandated by the client."

Sent back a firm email indicating that Opt-Out can't be mandated by the Agent. Didn't believe a Clientco would mandate it either. The Agent relented.

But they could still screw it up in some other way until a contract is signed. Schem'ing fooks, can't trust 'em.

They only wanted to submit contractors for interview that would Opt-out in the first place. Clearly they want candidates Opted-Out so they can put restrictive covenants on the contractor as well as ensure they don't have to pay a contractor if they don't get a signed timesheet in a certain time period, etc..

[LisaContractorUmbrella]

Thanks again Lisa. As I understood it.

Being Ltd is not enough, working Practices have to demonstrate it, as with IR35. If you are Umbrella you are naturally within AWR.

Dunno why the Agency has put it into their LTD Co contracts? Maybe they want to assume that if your LTD you are outside of AWR or add weight to that argument at a later point. From your reply this statement is probably a waste of time, it is, as ever, dependent on working practices.

Such a statement in a contract would not add weight to IR35 status and is actually meaningless - declaring yourself outside the scope of legislation will not put you outside.

[pauly]

If you are in business on your own account i.e. your working practises put you outside IR35 then the AWR don't apply. If you work through an umbrella they will apply.

Thanks again Lisa. As I understood it.

Being Ltd is not enough, working Practices have to demonstrate it, as with IR35. If you are Umbrella you are naturally within AWR.

Dunno why the Agency has put it into their LTD Co contracts? Maybe they want to assume that if your LTD you are outside of AWR or add weight to that argument at a later point. From your reply this statement is probably a waste of time, it is, as ever, dependent on working practices.

[LisaContractorUmbrella]

Troll...

45

Have to be honest in a way I hope it is - bit worrying if not

[LisaContractorUmbrella]

Thanks all for you previous help. The regs and how they are interlinked is clearer. Quick question:

Just got a contract from an agency. The contract is for a 6months Ltd Co engagement and remains Opted-in to the Conduct of Employment Business.

Buried within the contract is the term...

"The Personnel is not an Agency worker as defined under AWR Legislation and that the AWR Legislation does not apply in relation to this Agreement or any Assignment under this Agreement"

The term is basically saying that the Ltd contractor (i.e. Personnel of the Ltd company) is not covered by the AWR. This term is not contained within the Umbrella versions of this Agent's contracts.

My preference is to remove the term, but I don't want to delay the sign-up process. Can I assume that coverage by AWR is largely driven by working practices and not by terms in contracts that the agent wants in there?

If you are in business on your own account i.e. your working practises put you outside IR35 then the AWR don't apply. If you work through an umbrella they will apply.

[northernladuk]

Troll...

45

[pauly]

Quick query

Thanks all for you previous help. The regs and how they are interlinked is clearer. Quick question:

Just got a contract from an agency. The contract is for a 6months Ltd Co engagement and remains Opted-in to the Conduct of Employment Business.

Buried within the contract is the term...

"The Personnel is not an Agency worker as defined under AWR Legislation and that the AWR Legislation does not apply in relation to this Agreement or any Assignment under this Agreement"

The term is basically saying that the Ltd contractor (i.e. Personnel of the Ltd company) is not covered by the AWR. This term is not contained within the Umbrella versions of this Agent's contracts.

My preference is to remove the term, but I don't want to delay the sign-up process. Can I assume that coverage by AWR is largely driven by working practices and not by terms in contracts that the agent wants in there?

[LisaContractorUmbrella]

Ahh well the answer is now clear. Go brolly..

Seconded

[northernladuk]

in fairness to the OP he has stated in the first post of this thread that he was un-decided whether to use a brollie or go ltd.

Ahh well the answer is now clear. Go brolly..

[pauly]

in fairness to the OP he has stated in the first post of this thread that he was un-decided whether to use a brollie or go ltd.

Correct.

Trying to work out the ramifications of one or t'other.

Sounds like WTD is immaterial if your LTD (your a Director) and Brolly (you can opt-out of it working week restrictions parts). I don't need the convincing - its the Agent - who is probably just using WTD as an invalid argument to encourage a Opt-out on the Conduct of Employment Business Regs.

Hence wanted to clarify if an Opt-in to the Conduct of Employment Business Regs should in anyway stop terms in the contract providing overtime paid work. Sound as though it would not if your Ltd and you can opt-out of that WTD section if your using a Brolly? Just wanted the groups feedback so I can go back to Agent.

[moggy]

So which bit of "To which you can add comapny directors, who are exempted from the WTD" did you not understand? Even given the rubbish typing...

If you want to get technical (why, I ask myself...?) you can't be bound by the WTD unless you are an employee, which you aren't. You can then agree not to be bound by it, which is a variation for the UK alone that was negotiated separately a year or so back.

But to reduce it to its basics, you can ignore the WTD. End of.

in fairness to the OP he has stated in the first post of this thread that he was un-decided whether to use a brollie or go ltd.

[malvolio]

So which bit of "To which you can add comapny directors, who are exempted from the WTD" did you not understand? Even given the rubbish typing...

If you want to get technical (why, I ask myself...?) you can't be bound by the WTD unless you are an employee, which you aren't. You can then agree not to be bound by it, which is a variation for the UK alone that was negotiated separately a year or so back.

But to reduce it to its basics, you can ignore the WTD. End of.

[pauly]

NLUK is right - you are getting really confused.

Ta. Thought I had it, but the Agency propaganda has got ma' head spinning.

You need to have an understanding of each of the following and how they relate to you:

Agency Worker Regulations - for the protection of agency workers
Conduct of Employment Businesses & Employment Agencies - regulates how agencies work - this is the one that you can opt-out of
IR35 - determines whether or not you will be a PAYE employee of your Ltd Co.
EC Working Time Directives - restricts working hours

Get it.

The Job Title for this contract is IT Project Manager.

Sounds as though I could technically Opt-out of sections of the EC Working Time Directive as described here...

"The UK along with a number of other EU countries negotiated for the regulations to also include the ability for you to opt out to the section which restricts working hours to 48 hours each week. You can’t opt out of any part of the other regulations so even if you opt out of the working week restrictions you are still entitled to the rest of the provisions of the regulations."

Also understood that if I engaged as a Ltd Co I maybe excempt from the WTD as a Director

I just want to understand:

1. If there is any validity to an Agency arguments encouraging a candidate to Opt-out of the Conduct of Employment Regs in order to work and be paid overtime?? And if they are valid, can a candidate remain Opted-in to the Conduct of Employment Regs, but Opt-out of the WTD working week restrictions part, in order to work the extra hours and be paid overtime (whilst enjoying the protections of the Conduct of Employment Regs)?

2. If an Agent just emails a candidate a generic version of their Conduct of Employment Opt-out contract (i.e. no schedule section) ahead of an interview - is this sufficient "evidence" of the candidate Opting out of the Conduct of Employment Regs before an introduction?

Your past feedback is appreciated.