Reply to: Opt-out Conduct of Employment Agencies Reg

[clearedforlanding]

To clarify, this contract is my first contract, but I discovered this website back in Sept/October time. A contractor friend of mine recommended QDOS which is why I had their name down - sadly most of my contractor friends don't seem overly fussed about about opting out of the regs (probably a separate worry) which is why I wanted to know if anyone on here would realistically let a good gig go over opting out.

Thanks for all your replies though guys.

'Regulation 32(13) states that the agency should not make the provision of their services conditional on entering into an opt-out.' - If opting out is your choice, trap them into emailing the request to you.

Opt in, opt out? What the agency regs are all about (part 2) :: Contractor UK

[EggsAndBacon]

To clarify, this contract is my first contract, but I discovered this website back in Sept/October time. A contractor friend of mine recommended QDOS which is why I had their name down - sadly most of my contractor friends don't seem overly fussed about about opting out of the regs (probably a separate worry) which is why I wanted to know if anyone on here would realistically let a good gig go over opting out.

Thanks for all your replies though guys.

[clearedforlanding]

The OP may not be as green as you are making out as people's language on forums is offered not the best.

Well OP's post did say it was his first contract through an agency, we both pointed him to the newbie guide & I think that advising him to use Qdos & IPSE is pretty sound.

I am struggling to see where my language may have offended, but as always stand to be corrected.

[SueEllen]

I am sorry SueEllen, but I genuinely am missing your point here.

The OP may not be as green as you are making out as people's language on forums is offered not the best.

[clearedforlanding]

In regards to my first contract I did a hell of a lot of reading on IR35 long before I got it. I also had the advantage of knowing and talking to contractors. Though I didn't understand it.

I've also been on enough forums to know not to wind up long term posters by teaching them to suck eggs. In fact on another forum I've got other long term posters permanently banned due to their attitude to posters, new and old, who disagree with them.

My lawyer did tell me to read and list on my first contract. It took ages and the contract was a short one of about 3 pages.

What it did help me with was interviews. I learnt what I needed to ask the client at every interview in terms of D&C.

I am sorry SueEllen, but I genuinely am missing your point here.

[SueEllen]

That is all very well, but:

a) You had lawyers.
b) You didn't assume on your first contract that you could dissect 5 years of discussion by experienced contractors on IR35/Opting out and condense them and state that to them.
c) You have not said far as I can tell that "all these regulations mean diddly squat as none of it has really been stretched in the courts properly."

With regard to b&c, if one came up with that, a good lawyer would not recommend that you "read & list" on your first contract. He would walk you through it.

Your are experienced OP clearly is not, and I stand by my advice to let QDOS do this one and join IPSE.

In regards to my first contract I did a hell of a lot of reading on IR35 long before I got it. I also had the advantage of knowing and talking to contractors. Though I didn't understand it.

I've also been on enough forums to know not to wind up long term posters by teaching them to suck eggs. In fact on another forum I've got other long term posters permanently banned due to their attitude to posters, new and old, who disagree with them.

My lawyer did tell me to read and list on my first contract. It took ages and the contract was a short one of about 3 pages.

What it did help me with was interviews. I learnt what I needed to ask the client at every interview in terms of D&C.

[clearedforlanding]

The 3 lawyers I've used have all liked me to read the contract myself before hand and list any issues I see in the contract particularly if they contradict what the client has said to me. In some cases I have had to ring up the client directly to clarify things.

Lawyers and most accountants expected their clients, particularly those working in knowledge industries, to look at and understand some things themselves as it can make their work simpler.

That is all very well, but:

a) You had lawyers.
b) You didn't assume on your first contract that you could dissect 5 years of discussion by experienced contractors on IR35/Opting out and condense them and state that to them.
c) You have not said far as I can tell that "all these regulations mean diddly squat as none of it has really been stretched in the courts properly."

With regard to b&c, if one came up with that, a good lawyer would not recommend that you "read & list" on your first contract. He would walk you through it.

Your are experienced OP clearly is not, and I stand by my advice to let QDOS do this one and join IPSE.

[SueEllen]

I think you are probably not ready for this. I think all of us here would recommend getting QDOS to do that for you. You should also be getting an IPSE membership.

They are the fundamental investments that underpin your contracting career.

The 3 lawyers I've used have all liked me to read the contract myself before hand and list any issues I see in the contract particularly if they contradict what the client has said to me. In some cases I have had to ring up the client directly to clarify things.

Lawyers and most accountants expected their clients, particularly those working in knowledge industries, to look at and understand some things themselves as it can make their work simpler.

[EggsAndBacon]

I think you are probably not ready for this.

You managed to completely take the sentence out of context - well done. My implication wasn't that I wouldn't be having a pro go over the contract. My implication was that all these regulations mean diddly squat as none of it has really been stretched in the courts properly.

On a side note - Not really fussed whether you think I'm ready or not. You don't know me and I don't know you. There is alot of negativity and discouragement on this forum towards n00bs. It's unnecessary, and abit silly. If you're not interested in discussing these subjects, then I don't understand why you're on this forum.

[clearedforlanding]

Thanks guys, much appreciated - and sorry, I'm working my way through the 50 page stickied thread but there's alot of it, and waffle/misnomers to wade through too. I'm tempted to collate it myself in a concise synopsis post at some point once I understand more about everything, otherwise it's frustrating picking the waffle from the more useful posts.

Either way you're right, I should be combing the contract like a hawk regardless and checking it has what I want in it, rather than relying on tenuous regulations.

I think you are probably not ready for this. I think all of us here would recommend getting QDOS to do that for you. You should also be getting an IPSE membership.

They are the fundamental investments that underpin your contracting career.

[EggsAndBacon]

Thanks guys, much appreciated - and sorry, I'm working my way through the 50 page stickied thread but there's alot of it, and waffle/misnomers to wade through too. I'm tempted to collate it myself in a concise synopsis post at some point once I understand more about everything, otherwise it's frustrating picking the waffle from the more useful posts.

Either way you're right, I should be combing the contract like a hawk regardless and checking it has what I want in it, rather than relying on tenuous regulations.

[BlasterBates]

Sue Ellen makes a good point. Make sure the things you would like are in the contract.

I would go a step further don't rely on the employment regulations, before the agency regulations contractors got their conditions in the contract.

Make sure the conditions you would like are in the contract, that way you don't have to rely on some dubious legislation that probably won't be applicable anyway. As I said above if the agent tells you you're outside the legislation and therefore won't pay you don't want to be taking precedings by submitting written evidence you were under the control of the client. You want to point to your contract.

[SueEllen]

Two of the main things to get in your contract covered by the regulations are:
1. An acknowledgment that you will be paid on evidence of doing the work NOT when the client pays the agency,
2. A reasonable handcuff clause

If you are opted-in these shouldn't apply but in reality as there are no higher court cases on the issue you need to ensure they are written into your contract regardless of your status.

Agents want you to opt-out because they presume it gives you less legal rights as they do not understand what it covers. For example I've had agents trying to exclude me from laws like Health and Safety before linking it to the regulations. I've had to point out that such a clause isn't legally enforceable and anyway is no way is legally linked to it.

They can put opt-in in the contract but you need to ensure all the other clauses are properly reviewed so it's only related to the areas of should apply to.

Interestingly because I tend to get lawyers to look at my contracts on a few occasions I have been given a different contract once I have said that with a couple of contentious clauses removed. (Some agents do ring the lawyer to check. )

[BlasterBates]

The point is if you are truly outside IR35 the conduct of employment regulations don't apply.

So what is the point ?


Either you're inside and you gain protection or you're outside and you gain no benefit. Lets say you then brought a legal case using "opt in" as your case and there is an IR35 investigation. Well the chances of both happening are so small that there probably exists no case that was tested, but would you be happy saying to a judge you sued the agency because you were controlled by the client ?

I see no harm in the opt out clause not being in your contract, but I would advise against the opt in being written in with all the implications. Actually exercising your opt in as opposed to simply not being opted out is a completely different kettle of fish. To get your money out of the agency you will have to submit evidence of being "controlled". Hence an opt in not worth very much at all, because for you to get the money out of an agency you would have to provide evidence that HMRC would need to nail you.

My advice would be agree with the agent just remove all mention of opt in and opt out., but certainly not turn down the contract on a principle that doesn't apply anyway.

[Contreras]

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.

Except that opting out is not a denial that you are controlled by the client.

By opting out you accept that the legislation applies and therefore that there is control (as defined by the conduct regs.). If the relationship is genuine business to business then the legislation does not apply and there is nothing to opt out of.

Really, if there was anything in this for HMRC we would have seen case law by now.

For balance, here's the view from a respected IR35 'expert' -

IR35: There was much discussion in the course of the battle over whether or not the inclusion of limited company contractors within the regulations would be an IR35 negative; if it is an IR35 negative, then in my view it will be a very minor one, but I myself believe that operating within or without the regulations will be an IR35 neutral point. 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.

Thus my own feeling is that any potential IR35 effects of opting out should be disregarded.

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