Reply to: What are people's thoughts on this?

[SteelyDan]

Is this rullion? They will not submit you for a role unless you agree to opt out.

Don't Re-Think also do this?

[BolshieBastard]

Hi - apologies for this being my first post, ordinarily I would not talk business before pleasantries, but needs must.

I've been contracting for 16 years, the last few contracts have been from my Ltd company direct to client, so I have been out of the loop with agents for a while.

I was called today from a CV posted on Jobsite - role was a good fit, agent was open with the client name and sent me over a spec, asking if I would like them to put me forward.



I then received this email (I have removed some ID details):

This email relates to your recent discussions regarding the position of XXXX at the company of XXXX

XXXXAgency name are to provide you with contract recruitment services; that is to say we will act as an Employment Business as defined under The Employment Agencies Act 1973.

Please can you reply to all the addressed above, including this email, that your Limited Company are happy to Opt Out of the Conduct of Employment Agencies and Employment (EAA) Business Regulations 2003.

Under Regulation 14 of the Conduct of Employment Agencies and Employment Business Regulations 2003, agencies are required to obtain agreement of terms with work seekers before providing them with work finding services.

Passport and References

The Employment Agencies Act 1973 also require us to obtain proof that you are eligible to work in this country, and you are capable of providing the services to our clients, we therefore require names of two referees and a copy of your passport, or visa documents to support your application.

Check list

To clarify we need the following:

Passport for ID (as well as any supporting Visa information if required)
Contact details for two referees
Confirmation that you agree to be represented by XXXXAgency name

So - having read this thread there are certain aspects that sound alarm bells.

The opt in and out clause and their responsibility towards it seem to allude that they will not move me forward without my opting out - am I interpreting that correctly?
The wording around the clause of the 2003 act and terms agreed before they act as work finders seems willfully ambiguous - from what I can glean, I am allowed an option on those terms, either in or opt out - I am correct in this aren't I?
The referees contact details - both my referees have spam filters and a preferred suppliers list but are well versed in being hassled by agents, they are aware of this and are ok, so whilst I am not delighted to share them, I'll wait and see if I am told this is a blocker for interview and make a judgement then.


I'm grateful for people's views - I would like the role and would not like to loose the opportunity - but it's not life or death.

Is this rullion? They will not submit you for a role unless you agree to opt out.

Also, the referees stuff is bollocks. If you'd have worked through agencies recently, Id have said just give them the names of the 2 agents but as you've been direct for some time, you cannot.

Passport or other photo id is required.

[Contreras]

here is the view that I read, which isn't that it puts you inside, but certainly pushes you a bit in the wrong direction:

Conduct of employment regulations: a guide to opting in or out

However, although employment status is determined on a case-by-case basis, a limited company contractor accepting on paper that they are controlled by the client and wish to be covered by the regulations is sending a pretty negative message to HMRC about their employment status. Control by the client is a key factor in determining the employment status of a contractor, and can be part of a package of evidence that puts a contractor inside IR35.

I've bolded above what I see as the flaw there. You can't opt-in, only opt-out. It goes on to say...

But, as highlighted earlier, genuine contractors are not controlled by their client, and so technically the regulations do not apply anyway.

So if challenged by HMRC then the reason to not opt-out is already aligned with your IR35 defence.

The regs have been around for a decade. If there were any strength of argument here then I imagine it would have been tested by HMRC by now. But from your first link...

There have not been any IR35 cases that have been argued before the Special Commissioners or other courts where HMRC have argued that the contractor fell within IR35 on the basis that the Regulations applied to the assignment. It is our opinion that HMRC is unlikely to run this argument, as it is very weak.

It is our view that a failure to opt-out of the Regulations will mean that you automatically fall within IR35. However, to ensure that you are clear about your IR35 status, we would recommend that you have an IR35 Review as soon as possible.

I've quoted the 2nd para as well because it boggles me how they arrive at that conclusion, but hey it's legal conjecture and opinions vary. For balance here is another...

Indeed, I would say the taking of a decision to avail oneself of the commercial protection of the regulations and not opt out could be argued to be an IR35 positive, since it is exercising sound management principles to take a commercial decision in the best interests of the business, for reasons other than tax.

Opt-in, opt-out?Legal specialist Egos comments :: Contractor UK

[tractor]

...

Sadly not at all rare, I've had that debate more than once in the last few years.

Me too, agents and their tactics are often despicable.

[TykeMerc]

That's my understanding. They won't like it, and they may place someone else who is opted out if they can.

Just be wary of them trying to issue you with a deliberately IR35 unfriendly contract if you stay opted-in. I don't kow how comman that tactic is.

Sadly not at all rare, I've had that debate more than once in the last few years.

[BlasterBates]

Aha, now I see why you believe that opt-in/out of the Conduct of Employment Agencies Regulations affects your IR35 status.

The Conduct regs are a different beast to the Agency Worker Regs. The former does not impact IR35, the latter does not permit an opt-out.

ah was looking at and posted the wrong document when looking for "opt out" from the gov website, thought it was a bit over the top

However here is the view that I read, which isn't that it puts you inside, but certainly pushes you a bit in the wrong direction:

Conduct of employment regulations: a guide to opting in or out

However, although employment status is determined on a case-by-case basis, a limited company contractor accepting on paper that they are controlled by the client and wish to be covered by the regulations is sending a pretty negative message to HMRC about their employment status. Control by the client is a key factor in determining the employment status of a contractor, and can be part of a package of evidence that puts a contractor inside IR35.

[SpontaneousOrder]

Thank you - so it's not unreasonable of them to ask for me to take and option before hand, and the wording is not illegal as is, just cleverly omits my option to remain in the scheme (which I take is the starting position).

I'll have a look at the benefits of remaining in scheme - as alluded to later in the thread I am indeed the director of the Ltd company.

That's my understanding. They won't like it, and they may place someone else who is opted out if they can.

Just be wary of them trying to issue you with a deliberately IR35 unfriendly contract if you stay opted-in. I don't kow how comman that tactic is.

[Contreras]

If you are opted in the client must provide you with all the same entitlements as any other employee,

Found this:

http://www.gov.uk/agency-workers-your-rights

Aha, now I see why you believe that opt-in/out of the Conduct of Employment Agencies Regulations affects your IR35 status.

The Conduct regs are a different beast to the Agency Worker Regs. The former does not impact IR35, the latter does not permit an opt-out.

[LaHombre]

We're normally talking about opt-out not being enforcable because it has to be done before being introduced to the client - so with that being the case, it would make perfect sense to want to agree terms before proceeding.

Obviously, the fact that they ask you to confirm you opt out, rather than asking if you want to, is to make it look like it's mandatory in order to proceed - which would be illegal in reality.

That doesn't mean they can't have different opt in/out cotracts though.

Thank you - so it's not unreasonable of them to ask for me to take and option before hand, and the wording is not illegal as is, just cleverly omits my option to remain in the scheme (which I take is the starting position).

I'll have a look at the benefits of remaining in scheme - as alluded to later in the thread I am indeed the director of the Ltd company.

[SteelyDan]

If you are opted in the client must provide you with all the same entitlements as any other employee,

Found this:

http://www.gov.uk/agency-workers-your-rights

You sure about this? OP is a Ltd Co (dir), and as far as I'm aware, as a dir of a ltd co, AWR is not applicable regardless of opt-in, or out. And I don't believe that by opting in provides the security of payment guarantees at all. In theory it might, but in practice, I don't think so.

[BlasterBates]

If you are opted in the client must provide you with all the same entitlements as any other employee,

Found this:

http://www.gov.uk/agency-workers-your-rights

[SpontaneousOrder]

We're normally talking about opt-out not being enforcable because it has to be done before being introduced to the client - so with that being the case, it would make perfect sense to want to agree terms before proceeding.

Obviously, the fact that they ask you to confirm you opt out, rather than asking if you want to, is to make it look like it's mandatory in order to proceed - which would be illegal in reality.

That doesn't mean they can't have different opt in/out cotracts though.

[LaHombre]

You say that like it's a bad thing.

I can feel copies the Guardian not being folded along the crease lines and thrown down in disgust

[LaHombre]

I would have corrected it myself had I noticed. It would have ensured that pedants wouldn't jump on the OP, providing no helpful advice but lots of useless tutting...

I've corrected it myself (ordinarily I would post and triple check when it was live, the issue is I couldn't see the post as the first ones are moderated) - I guess if you walk into peoples front room without wiping your feet then they can get a bit tutty

[TheFaQQer]

It would have ensured that pedants wouldn't jump on the OP, providing no helpful advice but lots of useless tutting...

You say that like it's a bad thing.