Reply to: Haven't been paid as client hasn't paid agency...how is that my problem!

[SueEllen]

Hmm, I thought the jury was out on this. Both Cojak and SueEllen got conflicting information. Cojak said no but SueEllens response said something along the lines it is the agencies choice if they wish to only use Opt out people. I think her response was from BiS.

Yeah we did get conflicting information and both our information was from the BIS EAI team members.

In this case regardless of whether you are opted in or out if the client doesn't pay the agency you aren't guaranteed to get paid on time.


Being opted-in just means that the agency will have to pay you at some point if the client never pays.

In this case it's best to talk to people first and record everything in emails. That way if the client says we will pay the agency in 7 days but doesn't you can turn around to them and say then I'm not working until you do.

The reason to read your contract properly is that some contracts actually have clauses in them that if the client is 10-14 days late in paying the agency, then the agency will tell the contractor not to go in. This is to protect both the agency and the contractor credit lines.

[malvolio]

Hmm, I thought the jury was out on this. Both Cojak and SueEllen got conflicting information. Cojak said no but SueEllens response said something along the lines it is the agencies choice if they wish to only use Opt out people. I think her response was from BiS.

BIS's view was that making the Opt Out a condition of contract award was illegal, but - and it's rather a big but - the agency is free not to deal with whoever it chooses. Another reason the Regs are actually a waste of time and effort for a trading company: I follow the principle that I ignore them since to do otherwise implies I consider both MyCo and me to be in need of their protections: as we can see from this thread, they make f*** all difference in the real world we all inhabit.

[northernladuk]

Absolutely. The agency cannot make the offer of a contract conditional on your opt out status.

Hmm, I thought the jury was out on this. Both Cojak and SueEllen got conflicting information. Cojak said no but SueEllens response said something along the lines it is the agencies choice if they wish to only use Opt out people. I think her response was from BiS.

[TheFaQQer]

And it's illegal too, right?

Absolutely. The agency cannot make the offer of a contract conditional on your opt out status.

[northernladuk]

Yeah. I had no view of any opt in/out until I already had a contract in my hand, and an email asking me to sign the opt out agreement.

Can't remember a single time I have been asked to Opt out before introduction. Bearing in mind we shouldn't be signing anything until we have seen a contract, which they won't issue unless you get offered the gig it's all a bit of a nonsense really.

[SpontaneousOrder]

I'd be interested to know where they got that from, unless they also work for the agency and know how they operate.

And it's illegal too, right?

I can probably count on two fingers (certainly one hand) the number of agents who have mentioned opt out status in the initial conversation, so to suggest that this would have happened seems frighteningly naive.

Yeah. I had no view of any opt in/out until I already had a contract in my hand, and an email asking me to sign the opt out agreement.

[strawberrysmoothie]

Do you know who the accounts payable team are in the company? If so, have a quiet chat to find out why they haven't paid the agency (they might be more sympathetic if they know you are getting paid as a result). If you / the agency haven't had any problems so far then it may be that authorised signatories are all on holiday.

good idea. I actually know 3 or 4 individuals I could speak privately to.

[ASB]

Mal,

“The contract must be construed so as to give effect to the intention of Parliament rather than to defect it.* If that cannot be achieved by way of construction then the offending clause must be struck down.”

I can find the quote. But not the case.

So statute trumps. Simples. But......

it will likely depend the individual case.

from a simplistic point of view if one can simply defeat statute by insertion of a contractual clause then, in extremis, statute becomes irrelevant.

I accept, however, that in b2b type transactions the negotiating parties are generally considered to be acting from a position of understanding consequences of what they agree. Thus less protection is generally afforded.

[SarahL2012]

Do you know who the accounts payable team are in the company? If so, have a quiet chat to find out why they haven't paid the agency (they might be more sympathetic if they know you are getting paid as a result). If you / the agency haven't had any problems so far then it may be that authorised signatories are all on holiday.

[tractor]

...

That's not true - there is no impact on IR35 of opting in or out of the agency regulations.


I'd be interested to know where they got that from, unless they also work for the agency and know how they operate.


That is how it should work in an ideal world. In reality, it almost never works that way, though. For a firm of lawyers to tell you how something happened, unless they were party to the conversation, is worrying. I can probably count on two fingers (certainly one hand) the number of agents who have mentioned opt out status in the initial conversation, so to suggest that this would have happened seems frighteningly naive.

Agree with all of that but to be fair I suspect that B & C were simply answering the questions put to them by the OP and would not have investigated it thoroughly.

[TheFaQQer]

I spoke to b&c about this and I looked at my contract it says i've 'opted out' which is good for ir35 but doesn't guarantee payment weather the agency is 'paid or not'.

That's not true - there is no impact on IR35 of opting in or out of the agency regulations.

b&c did say that if I had not opted out it most likely I would not have been offered the contract.

I'd be interested to know where they got that from, unless they also work for the agency and know how they operate.

However, b&c did say I would been offered to opt in/out in the initial conversation with the agency

That is how it should work in an ideal world. In reality, it almost never works that way, though. For a firm of lawyers to tell you how something happened, unless they were party to the conversation, is worrying. I can probably count on two fingers (certainly one hand) the number of agents who have mentioned opt out status in the initial conversation, so to suggest that this would have happened seems frighteningly naive.

[strawberrysmoothie]

You seem to be a little unsure of whether you have opted out or not. Just because your contract says you have does not mean that it is so. You need to check whether you signed the Opt Out form prescribed by the legislation BEFORE your first introduction to the client. If you did not, you are not opted out and the Regulations apply.

Regardless of the outcome of this issue, you really should confirm your position with regard to the Regs for future reference.

Agency Conduct Regulations

ok I will check this out

[tractor]

...

thanks for the replies. Lots of great information (and a much needed cold water thrown in the face when necessary). I've been sick for the last few years and working to getting my business account back on track as my reserves have been depleted.

I spoke to b&c about this and I looked at my contract it says i've 'opted out' which is good for ir35 but doesn't guarantee payment weather the agency is 'paid or not'.

b&c did say that if I had not opted out it most likely I would not have been offered the contract. However, b&c did say I would been offered to opt in/out in the initial conversation with the agency


The agency, myself and the client all have had a good relationship so far, and I've been extended so I expect this will be resolved soon. I also have a contact in accounts (as its a small co) so I might have a chat with them too.

You seem to be a little unsure of whether you have opted out or not. Just because your contract says you have does not mean that it is so. You need to check whether you signed the Opt Out form prescribed by the legislation BEFORE your first introduction to the client. If you did not, you are not opted out and the Regulations apply.

Regardless of the outcome of this issue, you really should confirm your position with regard to the Regs for future reference.

Agency Conduct Regulations

[strawberrysmoothie]

thanks for the replies. Lots of great information (and a much needed cold water thrown in the face when necessary). I've been sick for the last few years and working to getting my business account back on track as my reserves have been depleted.

I spoke to b&c about this and I looked at my contract it says i've 'opted out' which is good for ir35 but doesn't guarantee payment weather the agency is 'paid or not'.

b&c did say that if I had not opted out it most likely I would not have been offered the contract. However, b&c did say I would been offered to opt in/out in the initial conversation with the agency


The agency, myself and the client all have had a good relationship so far, and I've been extended so I expect this will be resolved soon. I also have a contact in accounts (as its a small co) so I might have a chat with them too.

[tractor]

...

You can't separate the two.

It needs to be tested in court properly, but the contract is supposed to define the terms of the engagement for both parties. If it disagrees with statutory protection but it has been mutually agreed that such protection can be disregarded, it makes for an interesting argument. We take exactly the same approach with the WTD, for example, by agreeing that we do not wish it to apply.

Never forget the Regs are drafted for vulnerable workers, not B2B contracts, and the payment terms are directed at agency employees, not suppliers. This is not IR35, contract law has been long established. I'm happy to be proved wrong on this, but the risk that I'm not needs to be stated.

Not true.

The Regulations make provision for workers. Vulnerable workers and incorporated workers have special provisions under the Regs.

Any contract term that breaks statute is likely to be considered an Illegal Agreement. I know it hasn't been tested in court. Perhaps I should call the PCG Legal help line and ask? Surely this is a simple case of legal precedence (not to be confused with precedent).